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The future is now. Generative artificial intelligence
(“AI”) can be used to generate new content, including
text, images, animation, video, software code and music. Although
AI itself is not new, it has come into sharp focus in recent
months, accelerated by the availability and widespread adoption of
user-friendly programs such as ChatGPT1, DALL-E, Stable
Diffusion/Dream Studio, Midjourney, Jasper and CopyAI.
There are numerous content-related applications for AI among
media and entertainment companies, depending on the type of company
(e.g., publisher, video game company, creative agency,
studio/production company) and the specific use cases. Potential
applications include generating ideas and content, fact-checking,
editing text, moderating misinformation and content targeting and
ranking. Already, to name a few of the use cases among media and
entertainment companies, we have seen publishers such as CNET using
AI to assist in the writing of certain content2 and
BuzzFeed embracing AI to enhance and personalize certain types of
content offerings, video game creators such as Naughty Dog using AI
to create the environment for the highly popular “The Last of
Us” video game, creative agencies using AI for different
content creation, and entertainment companies adopting AI
technologies to augment visual effects, preserve and colorize film,
localize content, alter actors’ facial expressions3
, age and de-age actors’ faces4, and generate
synthetic human voices. This article will focus on content (not
code) generation applications and key U.S. legal considerations
bearing upon them.
The legal landscape surrounding the use of AI for content
applications is uncertain and rapidly evolving; some have likened
the current stage of AI to the early days of Napster.5
The use of AI tools involves legal and reputational risks that
clients (and media and entertainment companies in particular) must
carefully manage. We address below some of the legal and ethical
considerations associated with the creation of so-called
“synthetic media.”
- Intellectual Property and Confidentiality:
- Copyright Infringement: Can AI-generated
content (“outputs”) be considered a derivative work or
implicate the right of reproduction?6 Is it infringement
or inspiration? Providers of AI tools use data-scraping to train
their AI models (“inputs”).7 To the extent
that there is copyright infringement or that such data-scraping
otherwise constitutes copyright infringement or a Digital
Millennium Copyright Act violation due to the removal of copyright
management information, are there arguments that such uses are
permitted under the fair use doctrine or an implied
license?8 With respect to the fair use question, are AI
outputs sufficiently transformative to be eligible for a fair use
defense?9 A few closely watched lawsuits are expected to
provide some clarity on these issues.10 Who is liable
when the AI’s output is deemed to infringe someone else’s
copyright? If an AI tool provider is found to have infringed
third-party copyrights, could a media company using such a tool be
liable for infringement as well? It bears mentioning that copyright
infringement can be direct, contributory, or vicarious. To
complicate matters further, some publishers and other content
producers could find themselves on both sides of the AI usage aisle
— as content owners seeking to be paid for the use of their
content to train AI models and as users of AI tools to generate
their content.11 - Copyright Protectability: The U.S. Copyright
Office recently denied an attempt to register copyright in
individual images created using the Midjourney AI
tool.12 At the same time, the Office said that it
“will register works that contain otherwise unprotectable
material that has been edited, modified, or otherwise revised by a
human author, but only if the new work contains ‘a sufficient
amount of original authorship’ to itself qualify for copyright
protection.”13 While this decision could be
appealed, it provides directional guidance and suggests that the
more human alteration and involvement is involved in the creative
process, the more likely the creator will be able to claim
copyright in the finished work. On March 10, 2023, the U.S.
Copyright Office published guidance on the copyrightability of
works created using generative AI.14 That guidance
reaffirms that some amount of “creative input or intervention
from a human author” is required.” But, of course, that
begs the question, how much?
- Trademark Infringement and Unfair Competition:
In its lawsuit against Stable Diffusion in the United States
District Court for the District of Delaware, Getty Images asserts,
inter alia, that the inclusion in Stable
Diffusion/DreamStudio’s outputs of Getty Images marks or
visually degraded versions thereof give rise to claims of trademark
infringement, unfair competition, trademark dilution and deceptive
trade practices.15 Could media companies that publish
such outputs have liability for doing so?
- Right of Publicity: AI may be used to alter an
individual’s voice and image, thereby raising questions about
whether an individual can control the right to use their voice or
image for AI purposes. The actor James Earl Jones reportedly
recently granted a Ukrainian startup a license of his voice,
allowing the company to recreate his iconic Darth Vader voice using
AI. Depending on the nature of the AI use and whether the
individual’s voice or image is recognizable, state right of
publicity statutes, which exist in some, but not all, states and
vary among those states in which they exist, may provide protection
for the individual (and, in some states and under certain
circumstances, the individual’s heirs) against use of the
individual’s voice and image (in addition to potential
copyright claims where the voice or image was taken from, or
resembles elements of, a prior copyright-protected work).
- Trade Secrets and Confidential Information: A
media company’s inputs into an AI tool may be used to train the
AI tool’s model, thereby leading to the risk that those inputs
could be included in outputs to a third-party user.16
Given that trade secret laws require that trade secrets be
maintained in secrecy, the inputting of trade secrets creates a
risk of loss of trade secret protection. The inputting of
third-party confidential information held by a media company could
similarly run afoul of themedia company’s non-use or
non-disclosure obligations.
- Insurance Considerations: Media companies
should ascertain the position of their Errors & Omissions
liability insurance carriers on the use of AI and what
pre-publication or pre-broadcast review processes their carriers
may require.
- Copyright Infringement: Can AI-generated
- Consumer Protection: With the proliferation of
virtual influencers,17 which could potentially be
AI-powered, the Federal Trade Commission has proposed revisions to
its Guides Concerning the Use of Endorsements and Testimonials
in Advertising18 (the “Guides”) that
would include virtual influencers.19 Thus, brands that
work with virtual influencers would need to disclose their
connection and otherwise comply with the Guides. This raises the
question of how, in the context of a virtual influencer, the
Federal Trade Commission would enforce the requirement that
influencers’ endorsements reflect the honest opinions of the
influencer and that the influencer be a genuine user of the product
. Further, companies should consider disclosing that the influencer
is not human. - Content Integrity: AI outputs may be factually
inaccurate or even false, thereby creating a risk that publication
of content based on those outputs could lead to defamation claims.
AI tools may inadvertently plagiarize a previous work. AI also has
the potential to complicate efforts to validate the identity of
sources and to make more challenging reliance during the research
process on supposed media reports or social media. AI data set
inputs and algorithms may include biases that result in biases in
output content. Further, given the risk that AI tool inputs could
be included in outputs to a third-party user, the identity of
confidential sources could be exposed if inputted into AI. Having
clear content integrity guidelines relating to the use of
AI20 may help media companies mitigate some of these
risks, and companies should consider requiring human review of any
investigative or other news reportage generated using
AI21, or even wholesale prohibition on the use of AI by
its employees and contractors in connection with that content.
- Regulatory and Compliance:
- Computer Fraud and Abuse Act of 1986
(“CFAA”): Does data-scraping by AI tool
providers of sites whose terms of service prohibit such activities
create the risk of claims under the Computer Fraud and Abuse Act,
which prohibits accessing a computer without, or in excess of,
authorization and carries criminal liability? If so, are there
circumstances in which a publisher or other media company could be
found guilty of aiding and abetting the commission of such an
offense? The Supreme Court narrowed application of the CFAA a
couple years ago,22 but data-scraping, and in particular
the manner in which it is performed, may still subject one to a
CFAA charge and remains fraught with legal peril.23
- Data Privacy and Protection Violations: The
use of data sets containing personal data by providers of AI tools
to train AI models or as inputs by media companies to generate
content implicates applicable data protection laws. Users of
personal data for these purposes may be subject to substantial
penalties24 if they do not obtain that personal data in
compliance with such laws.
- Section 230 of the Communications Decency Act:
The Communications Decency Act generally provides immunity for
online computer services with respect to third-party content
generated by its users. For media companies that host
user-generated content, could the fact that hosted content is
generated by AI affect such companies’ immunity under the
Act?
- Computer Fraud and Abuse Act of 1986
- Labor: How will labor unions such as
SAG-AFTRA, WGA and the NewsGuild address use of their members’
performances and creative material in connection with AI inputs and
outputs?25 - Contractual Risks: For companies licensing,
syndicating or commissioned to produce content, how does the use of
AI tools impact their ability to make representations and
warranties regarding originality, ownership and non-infringement
and their exposure in relation to indemnification provisions? For
example, the Terms of Use for OpenAI (parent of ChatGPT and DALL-E)
provide that, as between OpenAI and the user and to the extent
permitted by applicable law, the user owns all input. The Terms of
Use further provide that Open AI assigns all rights in the output
to the user.26 Similarly, the API Terms of Service for
Stability AI (parent of Stable Diffusion and DreamStudio) provide
that, as between Stability AI and the user, the user owns the
output to the extent permitted by applicable law, and the user
represents that it owns the input.27 At the same time,
OpenAI’s Terms of Use make an exception for output generated by
a promptthat has been inputted by another user, and provide that
this output cannot be owned by any of the parties making that same
prompt. Companies may not be in a position to provide clear chain
of title and make representations and warranties with respect to
content generated using AI tools. This consideration may also arise
in an M&A context. As with open source software, buyers may
want to consider diligencing the seller’s use of AI and
addressing any associated risks in the relevant purchase or merger
documents.
As media and entertainment companies determine how AI can play a
role in optimizing their content-creation generation processes,
they should consider developing robust governance around the use of
AI, hand-in-hand with responsible, self-regulatory codes of
conduct28 and best practices to mitigate legal and
reputational risk and preserve brand safety.
Consideration should be given to adopting the following specific
practical steps and guardrails:
- Identification of Use Cases and Risk
Assessment: Companies should identify the specific types
of applications for which their employees and contractors could use
AI in connection with the generation of content. Once these
potential applications have been identified, companies should rank
different types of use cases and categories of synthetic media
based on level of risks. For example, publishing content that is
being syndicated to third parties and investigative and other news
content may be deemed high risk, such that a company prohibits the
use of AI in connection with that content. As another example,
companies should consider prohibiting the use of trade secrets and
confidential materials as inputs into AI tools. - Tracking: Companies should develop rights
management system mechanisms for tracking the use of AI and any
content generated using AI. These tracking mechanisms should
identify the AI tool used to generate the relevant outputs and
include a copy of the AI tool’s terms of use/service posted on
the date of use. Such tracking mechanisms should also identify the
role that humans played in generating the content, including the
degree of human alteration. - Auditing: Companies should perform periodic
internal audits of content to determine whether it was generated by
AI tools in compliance with company policies.29 - Oversight: Companies should consider
designating content integrity personnel to oversee and monitor the
use of AI, especially in permitted higher-risk use cases. - Training: Employees and contractors who
generate content should periodically undergo training in the
appropriate use of AI and related company policies. Companies may
want to further consider requiring their employees and contractors
to certify that they have reviewed company policies regarding
AI. - Transparency and Disclosure: Companies should
consider identifying (e.g., by applying disclosures to) content
generated using AI when publishing or otherwise disseminating or
sharing that content. 30This identification may specify
the particular manner in which AI was used in connection with
generation of that particular content. As an example (and to help
support the argument for copyright registrability), for content
created using AI tools, companies could include explanations in the
end credits detailing exactly how AI impacted the final work and
how much the work was altered by humans. - Contractual Restrictions and Terms of Use:
Just as companies include restrictions in third-party contractor
agreements on the use of open source software, companies should
also consider restricting the use of AI tools without company
approval by third-party contractors who create content. Companies
should develop policies related to the outbound licensing or
assignment to third parties of rights in employee-created and
contractor-created synthetic media. Companies should also review
their website Terms of Use to ensure that they explicitly prohibit
data-scraping of their websites.
The introduction of AI for creation of synthetic media is a
potentially transformative moment for the media and entertainment
industries, but carries with it significant uncertainties. As the
landscape rapidly evolves, the implementation of robust governance
and frameworks may help to mitigate some of the legal and
reputational risks that media and entertainment companies face when
deploying AI as part of their content generation processes.
Footnotes
1. ChatGPT reached 100 million users within two months
after its launch, becoming “the fastest-growing internet
service ever.” Will Douglas Heaven, ChatGPT is everywhere.
Here’s where it came from, MIT Technology Review (Feb. 8,
2023), ChatGPT is everywhere. Here’s where it came
from | MIT Technology Review.
2. Connie Guglielmo, CNET is testing an AI Engine.
Here’s What We’ve Learned, Mistakes and All, CNET (Jan. 25,
2023), CNET Is Testing an AI Engine. Here’s What
We’ve Learned, Mistakes and All – CNET
3. Brian Contreras, A.I. is here and it’s making
movies. Is Hollywood ready? (December 19, 2022), A.I. is here, and it’s making movies. Is
Hollywood ready? – Los Angeles Times (latimes.com)
4. George Winslow, Metaphysic Partners with CAA to Expand
Use of Generative AI in Film, TVTech (Jan. 31, 2023), Metaphysic Partners with CAA to Expand Use of
Generative AI in Film, TV | TV Tech
(tvtechnology.com).
5. James Vincent, The lawsuit that could rewrite the
rules of AI copyright, The Verge (Nov. 8, 2022), The lawsuit against Microsoft, GitHub and OpenAI
that could change the rules of AI copyright – The
Verge
6. There is disagreement over the likelihood that AI
tools will copy existing works in their outputs. A recent research
study found that certain AI models memorize and regenerate
individual images used as inputs to train the model. Extracting
Training Data from Diffusion Models, Cornell University (Jan. 30,
2023), [2301.13188] Extracting Training Data from
Diffusion Models (arxiv.org).
7. The USPTO has stated that the training process
“will almost by definition involve the reproduction of entire
works or substantial portions thereof.” Generative Artificial
Intelligence and Copyright Law, Congressional Research Service
(Feb. 24, 2023), Generative Artificial Intelligence and Copyright
Law (congress.gov).
8. To determine whether the use of a work is fair use,
four non-exclusive statutory factors must be considered: (1) the
purpose and character of the use, including whether it is of a
commercial nature or is for nonprofit educational purposes; (2) the
nature of the copyrighted work; (3) the amount and substantiality
of the portion used in relation to the copyrighted work as a whole;
and (4) the effect of the use on the potential market for or value
of the copyrighted work. See Generative Artificial Intelligence and
Copyright Law, Congressional Research Service (Feb. 24, 2023), Generative Artificial Intelligence and Copyright
Law (congress.gov); 17 U.S.C. § 107.
9. The first of the four statutory fair use factors
focuses on the purpose and character of the use. For this factor,
courts typically inquire into (1) whether the use is of a
commercial nature, and (2) whether the use is transformative.
Courts are more likely to consider transformative uses as fair. A
use is transformative if it “add[s] something new, with a
further purpose or different character, and do[es] not substitute
for the original use of the work.” U.S. Copyright Office Fair
Use Index (Feb. 2023), U.S.
Copyright Office Fair Use Index.
10. Getty Images (US), Inc. v. Stability AI, Inc., No.
123-cv-00135 (D. Del., filed Feb. 3, 2023); Andersen et al v.
Stability AI Ltd. et al, Docket No. 3:23-cv-00201 (N.D. Cal. Jan.
13, 2023).
11. Keach Hagey, Alexandra Bruell, Tom Dotan, and Miles
Kruppa, Publishers Prepare for Showdown With Microsoft, Google Over
AI Tools, WSJ (Mar. 22, 2023), Publishers Prepare for Showdown With
Microsoft, Google Over AI Tools – WSJ.
12. U.S. Copyright Office, Zarya of the Dawn (Feb. 21,
2023), 2023.02.21 Zarya of the Dawn Letter
(copyright.gov) (reasoning that the images generated by
Midjourney Technology were “not the product of human
authorship.”)
13. Id. at 11.
14. Copyright Registration Guidance: Works Containing
Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190
(Mar. 16, 2023).
15. Getty Images (US), Inc. v. Stability AI, Inc., D.
Del., No. 1:23-cv-00135, filed Feb. 3, 2023.
16. See Terms of use, OpenAI (Mar. 14, 2023), Terms of use (openai.com) (stating “Input
and Output are collectively ‘Content.’ [. . .] OpenAI may
use Content as necessary to provide and maintain the Services,
comply with applicable law, and enforce our policies.”); Sharing & publication policy (openai.com);
Usage policies, OpenAI (Mar. 23, 2023), Usage policies (openai.com); see also,
STABILITY AI API Terms of Service, Stability AI (Dec. 14, 2022), Platform (stability.ai) (stating
“Stability and our affiliates may use the Content to develop
and improve the Services [. . .]”).
17. In 2020, it was proclaimed that virtual influencers
commanded “three times higher engagement than human
influencers.” Matt Klein, The Problematic Fakery of Lil
Miquela Explained—An Exploration of Virtual Influencers and
Realness, Forbes (Nov. 20, 2020), The Problematic Fakery Of Lil Miquela
Explained—An Exploration Of Virtual Influencers and Realness
(forbes.com); Lil Miquela, a “19-year-old robot,”
currently has 2.8 million followers on Instagram.
18. Guides Concerning the Use of Endorsements and
Testimonials in Advertising, A Proposed Rule by the Federal Trade
Commission, Federal Register (Jul. 26, 2022), Federal Register :: Guides Concerning the Use of
Endorsements and Testimonials in Advertising.
19. Federal Register :: Guides Concerning the Use of
Endorsements and Testimonials in Advertising (stating “The
Commission proposes a modification indicating that an endorser
could instead simply appear to be an individual, group, or
institution. Thus, the Guides would clearly apply to endorsements
by fabricated endorsers.”).
20. For example, WIRED has published an official AI
policy that spells out how the publication plans to use AI
technology. See How WIRED Will Use Generative AI Tools, WIRED,
https://www.wired.com/about/generative-ai-policy/. – Google
Search
21. For example, although BuzzFeed is using AI to assist
with content creation, at the moment, it will not use artificial
intelligence to write news stories. See Oliver Darcy, BuzzFeed says it will use AI to help create
content, stock jumps 150% | CNN Business.
22. See Van Buren v. United States, 141 S. Ct.
1648 (2021).
23. Even if the CFAA is deemed to not apply, a data
scraper (someone who enables it) could still face claims under a
host of legal theories including trespass to chattels, copyright
infringement, misappropriation, unjust enrichment, conversion,
breach of contract or breach of privacy claims.
24. In addition to steep financial penalties, there is
also a risk of disgorgement of the outputs. The FTC required
companies that used deceptive data practices to build AI models to
destroy the data used as well as the models developed using such
data. See Mary Ashley Salvino, ANALYSIS: FTC Privacy
Authority Is Poised for Breakthrough Year, Bloomberg Law (Nov. 13,
2022), ANALYSIS: FTC Privacy Authority Is Poised for
Breakthrough Year (bloomberglaw.com).
25. SAG-AFTRA Executive Vice President Ben Whitehair
noted the importance of protecting digital performances and
artists’ likeness as AI-generated content grows. See
Entertainment in the Age of A.I., SAG-AFTRA (Aug. 10, 2022), Entertainment in the Age of A.I. | SAG-AFTRA
(sagaftra.org).
26. See Terms of Use, Open AI (Mar. 14, 2023),
Terms of use (openai.com); Service Terms, Open
AI (Mar. 1, 2023), Service terms (openai.com).
27. See STABILITY AI API Terms of Service,
Stability AI (Dec. 14, 2022), Platform (stability.ai).
28. Ethical self-regulatory frameworks may help to
provide conceptual guidance. One such example is The Partnership on
AI’s Responsible Practices for Synthetic Media, a set of
recommendations to support the ethical and responsible development
and deployment of synthetic media. See PAI’s
Responsible Practices for Synthetic Media, A Framework for
Collective Action, Partnership on AI, PAI’s Responsible Practices for Synthetic Media
– Partnership on AI – Synthetic Media (last visited Mar. 15,
2023); see also Artificial Intelligence Risk Management
Framework (AI RMF 1.0), NIST (Jan. 2023), Artificial Intelligence Risk Management Framework
(AI RMF 1.0) (nist.gov).
29. Commercially available tools exist that enable users
to detect AI writing. Examples of such tools are: AI Writing Check,
GPTZero, and AI Text Classifier.
30. In certain instances, disclaimers informing users
that AI is being used may be required by the AI provider. For
example, see Usage policies, OpenAI (Mar. 23, 2023), Usage
policies (openai.com) (“Consumer-facing uses of our models…
in news generation or news summarization… must provide a
disclaimer to users informing them that AI is being used and of its
potential limitations.”).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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