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The Intellectual Property StrategistFeaturesArtificial IntelligenceCopyrightsIntellectual PropertyTechnology Media and Telecom

The Intersection of Generative AI and Copyright Law

By Karl Zielaznicki, Victoria D. Summerfield and Eliza Cen
August 01, 2023

With the advent of readily accessible artificial intelligence (AI) and the breakthrough of generative AI (GAI) programs such as ChatGPT, Stable Diffusion and Midjourney, GAI is now a staple in all facets of business. GAI programs can generate new texts, images, and content (outputs) based on textual prompts by a user (inputs). Whether prompted to write a corporate slogan, create music, generate works of art and advertisements, or summarize a book — GAI can do it all. However, its increasing popularity means that users of GAI programs face substantial intellectual property risks — particularly when businesses use GAI for marketing and other public-facing purposes.

GAI has taken the world by storm. In 2023 alone, GAI has been used to generate musical works using the voices of famous musicians such as Drake, The Weeknd, Rihanna, Ye (formerly Kanye West), and Jay-Z — to name a few. These AI-generated musical works were short-lived, however, as they were quickly removed from streaming services after record label companies threatened legal action. GAI has also been used to generate new works of art. For example, the winner of the 2023 Sony World Photography Awards used GAI to create their winning work; however, the award was later forfeited when it was found that the artist used GAI to create it. GAI programs also have been used to write substantive and pictographic books — such as the more than 200 e-books on online bookstores that list ChatGPT as an author or co-author. Users galore also produce succinct or lengthy summaries of existing authored works with GAI. This may seem beneficial, however, a recently filed copyright infringement lawsuit, Silverman et al. v. Open AI Inc., No. 3:23-cv-03416 (District Court, N.D. California, July 7, 2023), claims that to produce books and summarize others, the GAI platform must "ingest" copyrighted books to learn what they are about and to account for their writing style — something the program allegedly did to plaintiff's copyrighted work, without her permission.

Scenarios like these raise many questions about how GAI and intellectual property rights intersect. What are the intellectual property risks a company takes when it prompts GAI to generate a unique output? Can a company use GAI to imitate the image and/or likeness of a celebrity for commercial purposes, such as a company advertisement? In this rapidly evolving area of law, it's essential to carefully consider the intellectual property law principles at play before using GAI for your commercial business endeavors.

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