By: Bishoy Attia
Over the past year, generative AI platforms such as Chat-GPT have become household names across the world and has sparked significant controversy. However, generative AI is more than just chatbots. There are image generators such as Diffusion or DALL-E 2 and these platforms are capable of learning techniques from published artists or content creators, and can derive new content based on their work. These platforms are trained on data leaks and parameters that can process billions of images and documents. This has led to many disgruntled artists as they have seen their work and techniques being used and distributed by these platforms. The platforms are not limited to portraits and photos, but also to music. Recently, a Drake song was created using AI and the creations received international publicity. This begs the question: are there any intellectual property concerns with regards to the use of generative AI?
Generative AI Causes Intellectual Property Concerns
The major concern related to IP when it comes to the use of generative AI is what constitutes a new creation as opposed to a rendering or a copy of an existing piece of work. This is commonly referred to as derivative work under intellectual property laws. To determine what is considered to be derivative work, the courts will look to interpret the “fair use doctrine.” This doctrine allows for copyrighted work to be used without the owner’s permission if the purpose is satire, commenting, news reporting, teaching, or research. Additionally, the doctrine allows for the transformative use of the copyrighted material in a way that it was not intended. This final point is likely what will determine if the generative AI platforms can use copyrighted materials without the permission of their owners. There are currently several cases at trial that will establish the legal landscape for this category of disputes. Getty Images, one of the biggest image licensing services, is currently in dispute with Stable Diffusion, a generative AI platform, over the alleged misuse of their photograph collection. This case will likely set precedence over what can be considered transformative use in the context of AI.
How Can Artists Protect their work moving forward?
As the use of AI continues to expand, it will become more difficult for content creators and artists to protect their work from being derived or transformed. Some techniques that artists can use to protect their work include the use of tools that help with the obfuscation of the algorithms that scrape databases. Additionally, digital creators must actively monitor digital channels to see if there is any trend of work being produced that has the possibility of being a derivative of their work.
Finally, the use of the blockchain may help digital content creators and artists from having their work used as a dataset or source for generative AI platforms. The increased security found in the blockchain will make it more difficult for generative AI platforms to scrape the data from these sources.
Disclaimer: The information provided in this response is for general informational purposes only and is not intended to be legal advice. The content provided does not create a legal client relationship, and nothing in this response should be considered as a substitute for professional legal advice. The information is based on general principles of law and may not reflect the most current legal developments or interpretations in your jurisdiction. Laws and regulations vary by jurisdiction, and the application and impact of laws can vary widely based on the specific facts and circumstances involved. You should consult with a qualified legal professional for advice regarding your specific situation.
Appel, Gill. “Generative AI Has an Intellectual Property Problem.” Harvard Business Review, 11 Apr. 2023, hbr.org/2023/04/generative-ai-has-an-intellectual-property-problem. Accessed 30 June 2023.
Mattei, Shanti Escalante-De. “Artists Are Suing Artificial Intelligence Companies and the Lawsuit Could Upend Legal Precedents around Art.” ARTnews.Com, 5 May 2023, www.artnews.com/art-in-america/features/midjourney-ai-art-image-generators-lawsuit-1234665579/. Accessed 30 June 2023.