Why You May Not Own the Copyright In the Work You Use AI to Create

This year, you can't go five minutes without seeing some new way to use AI to make your life easier. Generative AI has changed the way creators and business owners create content - free content like social media captions and emails and even paid content like digital downloads and even client work.

But what does this mean for the ownership of that content? If you use Generative AI to create something, can you still protect it from copycats? Or could you be accidentally copying someone else?

Tune in to hear what happens to copyright ownership when AI is involved in the creation process.

Key Takeaways

• Just by creating something and putting it into a format that can be perceived and reproduced (written, recorded, painted, etc.), you own the copyright in that creation.
• Human authorship is an essential element of copyright protection. If there's no human author, there is no copyright. That means content created by AI is not protected by copyright law.
• Generative AI synthesizes large amounts of information from various sources to respond to prompts. It can be very hard to tell what source material was copyrighted and how close the AI followed it, which means what it creates could easily infringe on someone else's copyright

Resources Mentioned

• Listen to Episode 23 for more details on Fair Use
• Watch the free masterclass
• Follow Amy on Instagram @artfulcontracts

Next Steps

Thank you so much for listening! If you enjoyed this episode, please reach out and let me know by sending me a DM on Instagram @artfulcontracts

Here are a few other steps you can take to support the podcast:

• Leave a review on Apple Podcasts
• Subscribe on Apple Podcasts, Google Podcasts, Spotify, or Stitcher
• Share the episode on social media and tag me @artfulcontracts

Episode Transcript

This is going to be a fun one. Okay, fun might be relative, but we're talking about something that has absolutely captured the attention of everybody in the online space this year, and that is AI, artificial intelligence. Clearly, this year has changed the landscape of the way that creators and business owners use AI in their business with the introduction of generative AI for the general public, things like ChatGPT, something where you can put a prompt in and get something back that is tangible and usable.

Now, the question then is what are the implications of that for the business owners using them legally speaking? So much information has popped up this year in terms of people recommending the use of AI in creating your programs and creating your content. There are courses about how to use AI to make your business easier. And you know what? It's a tool, it's a technology, it can make your life easier. But if we go into that and not think critically about what the implications of that are, you can get yourself in trouble. So let's talk about it.

If you use AI in your content creation specifically, whether it's the creation of done-for-you things for your clients, whether it's creating your courses or creating your free content, Instagram captions, blog posts, things like that, what does that mean for your business legally? All right, let's do it.

Hey, I'm Amy Nesheim, licensed attorney for online business owners and founder of my own business, Artful Contracts. You're listening to Legal Made Easy, the show that makes the legal aspects of online business easy to understand and implement so you can grow your business with confidence knowing you've got it all covered. Let's dive in.

So what we're really getting into in this episode is copyright. How much protection do you have in content created by AI? Are there considerations to think about when you're using AI in your content creation process? What does it mean for your business? There are a lot of other elements that we could look at as far as AI goes, things like the ethical implications, requirements in marketing using AI. There are laws coming down the pipeline about that. There are already policies in place. For YouTube, Facebook, and Medium has a policy on it. That is a different conversation. What we're talking about today is copyright.

I just don't have time in one single podcast to talk about the entirety of what using AI means in your business. So we are focusing on content creation and copyright. So there are two sides to look at here. Number one, what does it mean for your ownership of your own content when you create using AI? And number two, the other side of it is what do you need to worry about in terms of are you going to be infringing on someone else if you use content created by AI?

All right, so that first side of it, what if you are using AI to create your content? Now, of course, the first thing I have to say is that the law is slow. It takes time to respond to changes in technology and changes in human behavior, and it has not caught up to this yet. But there is some guidance that we can look at. So there are lawsuits in progress, there is legislation in progress that is not finalized yet. And so it's going to take time for individual situations to come through the courts and decisions to be made based on that. But we do have a starting place.

The Copyright Office, the US Copyright Office, has decided that human authorship is an essential element of copyright ownership. So as a refresher, if you as a person, as a human, create something and put it in fixed format, if you write something, if you record something, if you design something, if you draw something, and it is then in a fixed format, able to be reproduced, able to be perceived, heard, seen, looked at, and then reproduced, you just by creating that, own the copyright in that thing that you created.

But the Copyright Office has decided that in order for a creator to automatically own the copyright ownership in the thing that they create, that creator has to be human. This has come up in the context of like a monkey painting something, and the Copyright Office said, no, the monkey does not have copyright in that item because it's not a human. The same thing goes for AI. AI is not a human; there is not enough human creativity involved. There is no copyright protection in the thing that AI creates.

That means if you put a prompt into ChatGPT and say, "write me an Instagram caption about 10 ways to grow your brand," and it spits back a caption and you copy-paste that over to Instagram, you do not have copyright ownership of that thing. And ChatGPT also does not have copyright ownership of that thing. There is no copyright in that Instagram caption. That means anybody can copy it. Anybody can use it. The same goes for image generation AI, where you give a prompt, "draw me a picture," or you know, "produce an image that includes these elements." There is no copyright protection in that image.

Now, some people argue that, well, if I put the idea in there, if I give it an outline and it just comes up with the final product, it's my idea behind the content. Reminder, ideas are not subject to copyright protection. They are not protected by copyright. Ideas, concepts, beliefs, none of that is protected under copyright. So if you give ChatGPT an idea, you're not giving it anything protected. And so far, it looks like the Copyright Office is most likely not going to find that there's enough human involvement just by giving ChatGPT or whatever AI, just by giving it a prompt. There's not enough human involvement, human creativity, or control over the outcome of what's produced for it to be considered a human author.

This is kind of like if you were to hire an artist and tell them, "I want a painting of my cat in the style of Monet," you don't have the copyright over that. The artist has the copyright over whatever they produced. But ChatGPT can't have a copyright, so there is no copyright in the thing that ChatGPT produces based on your prompt. Of course, that is something that could change as the courts go through more lawsuits of this kind of situation, as the Copyright Office sees more applications of this kind of situation, but as of right now, it is not looking good. If you put in a prompt, the author is considered to be ChatGPT, and because ChatGPT is not a human, there's no copyright protection.

Okay, so what does this mean for you practically? Number one, think about the content that you're making. Do you want ownership in it? Is it something that you care about? Maybe if it's an Instagram caption, you don't really care if you have ownership; you don't really care if somebody copies it. If you do care, if you want to make sure that you're building a bank of content that you own, or if you're using it for clients and want to make sure that you can transfer ownership of that content design, whatever, to your client. If you're creating a course and you want to make sure that nobody else can copy your course if you're selling it, you do want to have ownership, right?

So if you want to have ownership, you cannot use ChatGPT to produce the final outcome. You can use it for generating an outline or for giving you prompts to help you with the idea process, but not with the final outcome. If you do use it for a first draft, this is where things get a little murky, and I can't tell you exactly what the outcome is going to be legally. If you use it for a first draft, I would definitely recommend you at least edit it very heavily. Make sure that you have your hands, your creativity, your ideas, your thought processes, your unique human brain on that content. But even then, there's no guarantee if that first draft was created by AI, I don't know what the courts are gonna say. So, best practice if you want to make sure that you own your content is to only use generative AI software in the idea generation process or stay away from it altogether.

All right, so that is the content creation ownership side of it, what it means for your ownership of your copyrights if you use ChatGPT or generative AI to create your content. So now we need to look at the other side of it. Generative AI works by scraping multiple sources for information, sources across the internet, sources that you have no idea what they are, and then synthesizing that into a response. So it's a learning software, so it learns from all the information available to it and then outputs something for you. Those sources that it uses may or may not include copyrighted material. It may or may not be owned by someone else. And that means that just by inputting a prompt and ChatGPT comes out with something, you could easily accidentally be infringing on someone else's copyrighted work without even realizing it.

Because you don't know what that source info is, you don't know where the AI is getting that information, and then you also don't know how closely AI is following the source. You don't know if it took the information and output something that used the data, used the info, but turned it into different words. You don't know if it's copying verbatim from another blog or somebody's copyrighted work. It's just really hard to tell.

Now, some people argue, people who are pro-AI argue that anything that ChatGPT outputs or anything that generative AI outputs should fall under the fair use exception. I have another podcast that goes over fair use in more detail. But the core idea of it is that if someone uses a source and then creates something new, something that is transformed out of it, it's not copyright infringement. It's a defense; it is not an absolute right. But that's the idea. The core of it is if you've transformed something, you're not copying it. That's what people who want to encourage AI will say, that it should be considered fair use and not copyright infringement.

This is not a tested idea. It may not stand up in court because if there is no human author, if there's no human brain, can the use really be transformative? Can AI provide the creativity and imagination necessary to transform their original source material into something original and protected? They can't transform it into something protected. And based on the Copyright Office's logic so far, that AI is not a human, does not have the requisite human element involved, it probably can't provide that transformation element that would be needed to fall under the fair use exception.

Regardless, in order to be fair use, there has to be that transformation, and it's not something that you can again easily verify because you don't have all the source material. So here's what this means for you. If you do create content with generative AI, check it. Verify, do your best to verify that it is not copying something else. That means running it through Google, a Google search to see if it's close enough to something else that it comes up. Run it through a plagiarism checker to make sure it's not directly copying something else. And now a reminder: even if it's not close enough to be considered plagiarism, even if it's not directly copying, if the ideas, if the concepts are too close to the original work, if all it did is change a few enough words that it's not plagiarizing, it could still be infringement.

So to be safer, once again, just use ChatGPT or generative AI as an idea generator or an outline generator. Don't use it for the final product. Make sure that you have your brain in the final product. So that covers it. ChatGPT cannot create something that is protected by copyright. Generative AI cannot create something that is protected by copyright law because there is no human author. Copyrights are designed to protect human creators, and therefore AI creators are not protected.

So that means if you want to own the copyright in the thing that is created, and if you want to make sure that the created content is not infringing on someone else's work, then don't use AI to create your final outcome. Use it for ideas, use it for outlines, use it for prompts for yourself, but make sure that you're the one creating that final outcome. And again, all of this is in flux; the law is not settled, it will probably change, will probably become more fine-tuned, more nuanced, because we have that open question of what if it's a collaborative process going between the human and the AI, going back and forth to create the thing, who owns it then? Unknown.

So stay up to date if you use AI in your content creation, stay up to date, make sure that you know what it means for you. I'm not saying don't use ChatGPT ever, but I'm saying be smart about it. Make sure you know what you're getting yourself into. If you don't care about owning your content, keep doing what you're doing. Just make sure that you're making an intentional choice, as always.

All right, let me know. Is this surprising to you? Is this something that you had thought about before? Are you going to change the way that you use ChatGPT? Send me a DM over on Instagram. I'd love to talk about it. All right, see you next time.