“Hey Chatbot, Who Owns your Words?”: A look into ChatGPT and Issues of Authorship

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By: Zachary Finn

Unless you have lived under a rock, since last December, our world has been popularized by the infamous ChatGPT. Generative Pre-trained Transformer (“ChatGPT”) is an AI powered chatbot which uses adaptive human-like responses to answer questions, converse, write stories, and engage with input transmitted by its user. Chatbots are becoming increasingly popular in many industries and can be found on the web, social media platforms, messaging apps, and other digital services. The world of artificial intelligence sits on the precipice of innovation and exponential technological discovery. Because of this, the law has lagged to catch up and interpret critical issues that have emerged from chatbots like ChatGPT. One issue that has risen within the intersection of AI-Chatbot technology and law is that of copyright and intellectual property over a chatbot’s generated work. The only thing that may be predictable about the copyright of an AI’s work is that (sadly) ChatGPT likely does not own its labor. 

To first understand how ChatGPT figures into the realm of copyright and intellectual property, it is important to understand the foundations and algorithms that give chatbot machines’ life. A chatbot is an artificial intelligence program designed to simulate conversation with human users. OpenAI developed ChatGPT to converse with users, typically through text or voice-based interactions. Chatbots are used in a variety of ways, such as: user services, conversation, information gathering, and language learning. ChatGPT is programmed to understand user contributions and respond with appropriate and relevant information. These inputs are sent by human users, and a chatbot’s response is often based on machine learning algorithms or on a predefined script. Machine learning algorithms are methods by which an AI system functions, generally predicting output values from given input data. In lay terms, a system will learn from previous human inputs to generate a more accurate response. 

The ChatGPT process goes as followed:

1. A human individual inputs data, such as a question or statement: “What were George Washington’s teeth made of?”

2. The Chatbot reads the data and uses machine learning, algorithms, and its powerful processor to generate a response.

3. ChatGPT’s response is relayed back to the user in a discussion-like manner: “Contrary to popular belief, Washington’s dentures were not made of wood, but rather a combination of materials that were common for dentures at the time, including human and animal teeth, ivory, and metal springs. Some of Washington’s dentures also reportedly included teeth from his own slaves” (This response was generated by my personal inquiry with ChatGPT).

So, who ultimately owns content produced by ChatGPT and other AI platforms? Is it the human user? OpenAI or the system developers? Or, does artificial intelligence have its own property rights?

Copyright is a type of intellectual property that protects original works of authorship as soon as an author fixes the work in a tangible form of expression. This is codified in The Copyright Act of 1976, which provides the framework for copyright law. Speaking on the element of authorship, anyone who creates an original fixed work, like taking a photograph, writing a blog, or even creating software, becomes the author and owner of that work. Corporations and other people besides a work’s creator can also be owners, through co-ownership or when a work is made for hire (which authorizes works created by an employee within the scope of employment to be owned by the employer). Ownership can also be contracted.

In a recent Ninth Circuit Court decision, the appellate court held that for a work to be protected by copyright, it must be the product of creative authorship by a human author. In the case of Naruto v Slater, where a monkey ran off with an individual’s camera and took a plethora of selfies, it was concluded that the monkey did not have protections over the selfies because copyright does not extend to animals or nonhumans. §313.2 of the Copyright Act states that the U.S. Copyright Office  will not register works produced by nature, animals, the divine, the supernatural, etc. In the case of AI, a court would likely apply this rule and similar as well as any precedent cases that have dealt with similar fact patterns with computer generated outputs.

Absent human authorship, a work is not entitled to copyright protection. Therefore, AI-created work, like the labor manufactured by ChatGPT will plausibly be considered works of public domain upon creation. If not this, it is likely they will be seen as a derivative work of the information in which the AI based its creation. A derivative work is “a work based on or derived from one or more already existing works”. This fashions a new issue as to whether the materials used by an AI are derived from algorithms created by companies like OpenAI, or by users who influence a bot’s generated response, like when someone investigates George Washington’s teeth. Luckily for OpenAI, the company acknowledges via its terms and agreements that it has ownership over content produced by the ChatGPT.

However, without a contract to waive authorship rights, the law has yet to address intellectual property rights of works produced by chatbots. One wonders when an issue like this will present itself to a court for systemization into law, and if when that time comes, will AI chatbots have the conversational skills and intellect to argue for ownership of their words?

Yung Gravy’s “Never Gonna Give It Up” Attitude May Let Him Down: Impersonation of Rick Astley’s Voice and a Little-Known Legal Theory

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By: Cooper Cuene

Yung Gravy’s biggest hit to date has clocked over 34 million YouTube views, nearly 200 million Spotify plays, and has been featured in over 300,000 TikTok videos as of this February. The most prominent feature of the song, titled “Betty (Get Money),” is a repeated sample of Rick Astley’s 1987 hit “Never Gonna Give You Up.” What is less apparent is that the voice singing the sampled track is not, in fact, Astley’s. Rather, Gravy – whose legal name is Matthew Hauri – and his producers carefully impersonated Astley’s voice after being unable to secure the licensing rights to Astley’s original vocals. Unsurprisingly, Astley has sued.

The complaint alleges a mix both of California state and Federal law claims, but a careful reader would notice one type of claim missing. Unlike other recent high-profile music industry litigation, Astley does not allege that his copyright on the song has been infringed. Rather, Astley is suing Gravy for a number of other causes of action centering around the impersonation of his voice. While Gravy had obtained a license for the underlying music and composition, the license did not allow Gravy to use Astley’s voice on the original recording. Rather, Gravy’s producer Nick Seeley spent weeks auditioning vocal impersonators before eventually recording the part himself. 

The results of these efforts? Quite good, as Astley’s complaint takes pains to illustrate. Wikipedia, Billboard, allmusic.com, songfacts.com, whosampled.com, and other music outlets all wrote that “Betty (Get Money)” had directly sampled Astley’s original recording instead of impersonating it. Beyond passively going along with appearances, Gravy seemed to reinforce that Astley had participated. In his complaint, Astley alleges that Gravy had repeatedly suggested on social media that Betty (Get Money) was created with Astley’s blessing and involvement.

Astley focuses extensively on the public’s actual belief that his voice had been used because his claims essentially assert that Gravy had wrongfully used Astley’s voice, not the original recording of “Never Gonna Give You Up”. These claims include false designation of origin under the Lanham Act, an illegal appropriation of Astley’s property interest in his identity, and a violation of Astley’s right of publicity under California’s common law – a right that protects Astley’s right to “exploit his proprietary interest in his voice” as he pleases. Under Astley’s theories, he has a right to the commercial use of his identity and its defining characteristics, specifically his voice. When Gravy impersonated Astley’s voice despite knowing that he did not have the right to its use, he deprived Astley of his ability to commercialize his identity and voice, therefore causing consumer confusion about the projects that Astley had given his blessing and lent his performance to. 

The case law surrounding wrongful impersonations of musician’s voices is concise yet impactful. Midler v. Ford Motor Co. is the only case cited in the complaint, and its facts track closely with those alleged by Astley. In Midler, an advertisement for new Ford cars planned to use songs from the 1970s sung by their original artists. When Bette Midler – among others – refused, Ford’s ad agency used “soundalikes” to mimic the sound of her voice from her original recording of “Do You Want to Dance?” In a 1988 decision, the 9th Circuit ruled that because Midler’s distinct voice was part of her identity, Ford’s imitation of it without permission was unlawful. Upon remand, a jury awarded Midler $400,000, worth close to $1,000,000 today.

While Midler is the voice impersonation case most on point for the facts involved in this case, other relevant cases reach similar results. For example, in Lahr v. Adell Chemical Co., the 1st Circuit held that a commercial that impersonated a comedian’s voice without permission gave rise to an unfair competition cause of action. The court reasoned that the ad saturated the market for the comedian, reasoning that it could negatively impact the demand for that comedian’s unique voice and delivery in other endorsements. Midler distinguishes Lahr because Midler did not typically perform in commercials, but Astley’s market for licensing future samples could be saturated by Gravy’s use of his voice. Beyond Lahr, the case of Motschenbacher v. R.J. Reynolds Tobacco Co. provided an earlier precedent for recognizing an individual’s proprietary interest in their own identity. In this 1974 opinion, the 9th Circuit held that a tobacco company’s permissionless use of a famous racer’s defining characteristics and car in an advertisement gave rise to a cause of action. Notably, both the Motschenbacher and Lahr opinions focus on the extent to which the characteristics of the victim are identifiable by those viewing the product that imitates them.Based on the precedent stemming from Midler and other cases, Astley’s case against Gravy is strong. Like in Midler, Gravy had tried and failed to obtain a license for the original artist’s voice before being forced to use an impersonation instead. The impersonation used by Yung Gravy was actually mistaken for Astley’s voice in many cases, meaning that the focus on identifiability in Lahr and Motschenbacher will weigh in favor of Astley should the case go to trial. Further, although Lahr is not cited in the complaint, the fact that the use of Astley’s voice may saturate the market for future use of his voice as a sample would also support Astley’s claim based on Lahr’s reasoning. Regardless of the support found in other cases, however, the factual similarity to Midler should alone, in all likelihood, motivate Gravy to settle rather than take the case to trial. Unfortunately for Gravy, once it became clear that Astley was never going to give up the rights to his vocal performance, he should have known that his efforts to circumvent Astley’s wishes would only let him down.

Under a Microscope: Megan Thee Stallion trial shows how women of color are hypersexualized and criticized rather than protected

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Courtroom in the Federal Building and U.S.Courthouse built by architect Henry B. Carter in 1938. Original image from Carol M. Highsmith’s America, Library of Congress collection. Digitally enhanced by rawpixel. by Carol M Highsmith is licensed under CC-CC0 1.0

By: Talia Cabrera

*TW: Story about Victim of Assault*

At the end of 2022, Megan Thee Stallion entered a courtroom in Los Angeles, CA to face her assailant and finally testify in the court of law. For the past two years leading up to the trial against Tory Lanez, Megan Thee Stallion has dealt with the court of public opinion as she has defended her name and actions every time she stepped outside her home. At the age of 25, Megan Thee Stallion was a victim to gun violence, yet has faced an endless amount of public scrutiny.

From the moment Megan Thee Stallion was shot, every word and action she would do was under a microscope. Those who did not believe Megan was shot would doubt whenever she was silent after a question or make a video analyzing her body language to prove that she was lying. As if public scrutiny was not enough, Hip-hop artists were quick to capitalize on Megan’s trauma. Artists like Da Baby would retweet jokes about Tory Lanez shooting Megan. Even Drake made an insensitive comment about Megan’s credibility in his song “Circo Loco” rapping, “This bitch lie ‘bout getting shots, but she still a stallion. She don’t even get the joke but she still smillin’.” What’s funny about a woman being shot for no reason?

Megan Thee Stallion has been told she is too aggressive, sexual, and a liar. She was a victim of gun violence but was instead painted as a villain. Too many men continuously treat women as objects and find ways to justify their abuse.

In the height of the MeToo movement, women were empowered to step forward to confront a long history of being abused and taken advantage of. However, we tend to look at these movements with a white lens and never talk about the discrepancies women of color face. The hypersexualization of women of color is often the justification for abuse. Latinas are often described as “fiery”, “spicy”, and my least favorite thing to be called is “exotic”. This is not an experience latinas only face but is shared with other women of color. We are fetishized yet not protected. Women of color, particularly black women, are often not believed when they are victims of abuse. 40 percent of black women at some point in their lifetime will experience some form of physical violence. These high numbers are alarming but never given the same amount of attention. In a recent interview with CBS Morning news, Gabrielle Union points out how this discrepancy plays out in the media. In the new season of “Truth Be Told,” Gabrielle Union and Octavia Spencer are putting a spotlight on sex trafficking of young black and brown women and the disparity of media attention on this global epidemic. It is not the rest of the world taking initiative to report but instead it is in the hands of women of color to make sure this information is shared. Remember Gabby Petito and the endless reporting? Where’s the same outrage for black and brown girls being kidnapped? While there was extensive reporting around the Gabby Petito episode, the same outrage is not shown for black and women. 

The trauma Megan Thee Stallion has gone through and is continuously facing is an example of women of color, specifically black women, falling through the cracks of our community. We have failed to protect black women, yet they are the first to stand up for others. Without Alicia Garza, Patrisse Cullors, and Opal Tometi, there would be no #BlackLivesMatter. Black women and girls were in the shadows of the civil rights movement but nothing would have gotten done without their accomplishments. Megan Thee Stallion is a victim. The complexity of this situation is that “justice” was never served. Megan Thee Stallion should have never been shot and no man should ever think shooting a woman is ever justifiable. We need to do better in bringing attention to the harm women of color face on an everyday basis. In the meantime, women of color are going to continue to protect themselves since it seems like no one else is willing to.

Are rap lyrics protected as free speech or could they send you to prison?

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By: Aminat Sanusi

Over the past couple of decades, rap music has become part of mainstream culture and cultivated a billion-dollar industry. That means that more eyes are on every move the artists make and sometimes those artists get into trouble with the law. However, in recent years prosecutors have tried to use the artists’ lyrics as evidence during their trials to prosecute them for crimes charged against them. There has been much outcry and concern about using artists’ lyrics against them in a court of law because of First Amendment rights and how it disproportionately affects Black, Indigenous, and people of color (BIPOC). The Supreme Court has yet to rule on whether rap lyrics are protected speech under the First Amendment, so prosecutors in many states continue to use them as damming evidence in criminal trials.

How has the history of the First Amendment intertwined with artistic expression?

In a 1992 Supreme Court decision, Dawson v. Delaware, the court held that it is unconstitutional to use protected speech as evidence when that speech is irrelevant to the case. This case set a heightened evidentiary standard when it came to different forms of protected speech. This heightened evidentiary standard is disproportionately applied when it comes to rap music even though country music also uses vulgar language and speaks of violent and graphic imagery. Rap and hip-hop music in criminal trials has been treated as inherently criminating. The prosecutors in these criminal cases sometimes use rap videos in addition to the lyrics to try and convince juries that those artists more than likely committed the crime since they portrayed gang-related activities in their videos.

The majority of artists in the rap and hip-hop music industries are members of the BIPOC community and when they are facing criminal charges the prosecutors often use their rap lyrics as evidence that they committed the crimes. Rap lyrics are known to have vulgar language, and mention drug and alcohol use, gang-related activities, and different types of criminal activity. However, musical lyrics are considered artistic expression and are protected under the First Amendment. The First Amendment to the Constitution grants a person the right to free speech, press, and freedom to exercise the religion of their choice. The argument against the use of rap lyrics to incriminate hip-hop and rap artists is the fact that lyrics are free speech which is constitutionally protected.

Should artists be fearful of expressing their experiences in their music because it could be used against them in a court of law?

 In 2022, Grammy-award-winning hip-hop artist Jeffery Lamar Williams, famously known as, “Young Thug”, was charged with conspiracy and street gang activity under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. Mr. Williams is an African American male who raps about his life experiences including lyrics covering gang activity, drug and alcohol use, and living in poverty. The main piece of evidence used in Mr. Williams’ case was his rap lyrics. Many well known artists and celebrities have condemned this practice. They believe that prosecutors should not use Mr. Williams’ lyrics as evidence against him because, in addition to his music being protected speech under the First Amendment,  the lyrics have no relevance to the crimes he’s being prosecuted for. The prosecutor in Mr. Williams’ case claimed that the lyrics are not protected speech because they had relevance to the crimes he was facing. Mr. Williams’ trial has just commenced but it is not clear yet whether the use of his rap lyrics will be admissible or limited in his case.

Another unfortunate case of rap lyrics used as evidence was former rapper McKinley “Mac” Phipps Jr., who was convicted of manslaughter in 2001 after prosecutors recited his rap lyrics in court. He served twenty-one years in prison out of a thirty-year sentence and was released in 2021. In Mac’s case, he was arrested when rap and hip-hop first began to play a huge role in mainstream culture but at the time people did not pay much attention to the use of the artist’s music against them in court proceedings in a prejudicial manner.

What does the future hold?

In the summer of 2022, the Governor of California, Gavin Newsom, passed the Decriminalizing Artistic Expression Act into law, which limits the use of rap lyrics as evidence in criminal trials. This Act does not completely exclude the use of the lyrics against artists in court proceedings, however, it does provide that the lyrics need to have relevant substantive value to prove the crimes of the case and not be unduly prejudicial. This Act encompasses visual art, performance art, poetry literature, film, and other media. If the prosecutors in California wish to use the rap lyrics as evidence, they would have to show that the lyrics were written around the time of the crime and that the lyrics have some specific similarity to the crime itself. This new law in California will have an immense effect on the way prosecutors prosecute many of the rap and hip-hop artists accused of criminal activity and how rap lyrics or music videos may be used as an admission of guilt.

Additionally, this past year the New York legislature introduced a bill similar to the law passed in California that would limit the admissibility of a defendant’s artistic expression against such a defendant in a criminal proceeding. The bill is called the Rap Music on Trial Bill. This bill would not completely ban the use of rap lyrics in a criminal proceeding but would ensure that the lyrics used were to show literal and not just figurative or fictional meaning. The Bill has been voted on and passed in the New York State Senate but still awaits a vote in the New York State Assembly. The United States House of Representatives has recently introduced legislation called the Restoring Artistic Protection (RAP) Act which would limit the admissibility of lyrics as evidence in criminal cases. Co-sponsors of this bill, such as Representative Jamaal Bowman from New York has stated he supports this bill because of how it will prevent talented artists from being imprisoned for expressing their experiences. Additionally, it would provide comfort to artists who are afraid of expressing their creativity because they do not want their art used against them in a criminal case. The RAP Act currently has ten co-sponsors and has yet to be taken out of committee and brought to the floor for a vote. Hopefully, with all of these various changes in legislation, in the future rappers and singers will not be charged with crimes simply because of their artistic expression in lyrics and videos.

Major Tuddy’s Major Trademark Issue

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By: Kelton McLeod

On January 1st, 2023, the Washington Commanders unveiled a new mascot, Major Tuddy, a tall humanoid hog, wearing a military-inspired helmet and a perpetual grin. The unveiling has gone over with a healthy mix of derision and confusion, just about as well as anything one would expect to come from the Dan Snyder-owned Commanders. While even casual football fans might understand that Major Tuddy is named after the slang term for a touchdown, some are confused why the Washington, D.C.-based football team would want a hog to be the new symbol of their organization, while others are filing a trademark lawsuit because of it. 

From the 1980s and into the 1990s, Washington had the best offensive line in all of professional football. These men, including the likes of Joe Jacoby and Mark May, were known as The Hogs. The Hogs were, and remain, an important piece of Washington’s history, helping the team win its only three Super Bowls. But despite bursting onto the scene through a sign emblazoned with “Let’s Get Hog Wild,” Major Tuddy has not had many fans, players, or former players very excited. 

Instead of being a triumph at the end of a lackluster season (the Commanders were eliminated from playoff contention the day Major Tuddy was revealed), Major Tuddy has proved to be yet another point of controversy for the Commanders Organization. In fact, some of the original Hogs, including the likes of Joe Jacoby and Mark May, are so unenthused with the new mascot that they issued a statement prior to Major Tuddy’s announcement distancing themselves from Dan Snyder (the Commanders current majority owner) and referencing potential legal action related to this new Hog. The members of the original Hogs (joined by John Riggins, Fred Dean, and Doc Walker) created O-Line Entertainment, LLC,  and in July of 2022, O-Line Entertainment filed trademark applications to the federal register for ‘Hogs’ and ‘Original Hogs,’ as the terms relate to professional football paraphernalia and merchandise. O-Line Entertainment sees Major Tuddy as a potential infringement on their mark, an outright attempt to capitalize and commercialize on the work of the Hogs of the 80s and 90s, and an attempt to confuse the fans. 

While the Commanders imply they have no intention to financially capitalize on Hogs as a mark, O-Line Entertainment has a real shot at being able to exclude the Commanders from even trying. The Lanham Act §43(a) creates a statutory cause of action for trademark infringement, where “any person who . . .uses in commerce any word, term, name, symbol, or device, . . . likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person . . . shall be liable in a civil action by any person who believes that he is or is likely to be damaged by such act.” Trademarks exist to help consumers identify the source of a good. So, if someone attempts to use another’s mark, or something substantially similar, to cause confusion as to the source or sponsorship of a good, that party is liable for trademark infringement. In this case, it is hard to refute the source of Major Tuddy’s swine heritage, as even his official team profile references the offensive line from the 80s and 90s. O-Line Entertainment would just need to prove that the likelihood of confusion exists between their products and those of the Commanders organization, not that actual confusion has occurred. Under current law, there is a prospect of O-line Entertainment doing so.

While O-Line Entertainment’s trademark registration has yet to be granted, and the Commanders organization could attempt to invalidate it, this likely would not be worth the problems it would cause. The Commanders are already in the midst of a Congressional investigation, and Dan Snyder’s time as owner might not be able to handle the bad press. While it is hard to expect Dan Snyder and the Commanders leadership team–a group known for trying and failing to hide behind the best parts of their team’s legacy–to handle themselves in a morally upstanding way, how they choose to handle the marketing and merchandising of their new mascot could mean another long and protracted trademark dispute where they lack the moral high ground.