#copyright

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

/ Washington Journal of Law, Technology & Arts / Leave a comment
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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?

Virtual Experiences in the Art World: Potential for Copyright Issues

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By: Lauren Liu

Since the COVID pandemic hit, the world has been facing continuous health and economic issues. The art world, in particular, has been facing hardships that require art institutions to adjust their mode of operations. Since the year 2020, the world’s effort to contain the spread of COVID forced art galleries and museums around the world to close their doors and look for new forms of operation and exhibition. Such adaptations include increasing online marketing platforms, organizing virtual panels, and even creating online art exhibitions. In particular, these virtual exhibitions use high-resolution images of artworks, and provide them with contextual introductions of the artists’ background and inspiration. Some galleries include artworks that are available for sale, and thus further providing financial benefits for the galleries and their artists. The most fascinating part of these virtual platforms is the galleries’ implementation of virtual reality and augmented reality tools to produce virtual tours and remote immersive experiences. In other words, they are virtual exhibitions that mimic the audience’s experience when they are physically in an art gallery.

Virtual reality, also known as augmented reality (AR), usually displays an original or scanned work of art in a digital setting, thus creating a “total immersion” experience for the audience. As amazing and creative as it is for the audience, legal issues can arise for the gallery. For example, AR can invite “guerilla hacking” of a virtual exhibit. Hackers can copy and post unsanctioned works on the digital digital platform, and thus infringe upon the copyright of the original artists and take away the gallery’s potential revenue. Furthermore, the gallery also faces potential lawsuits from their artists alleging that the unauthorized use of their works was approved by the gallery.

As museums and galleries started implementing these virtual methods, they also had to start considering potential copyright issues. When museums use virtual reality or displaying art works online, they must keep in mind the intellectual property rights in the images and the text. Furthermore, they need to consider the rights of the artist, especially for a primary-market sale offer. For most artists, museums generally can clear the rights to use high-resolution images through the artist or her licensing agency. As for the photographer, if he or she is not employed by the artist or the museum, the museum should consider obtaining a broad license or require the photographer to execute a work-made-for-hire agreement with the customary in-the-alternative assignment language. Museums should also obtain the necessary rights from the author of the essays featured in the viewing room.

Museums and galleries may have available to them, the Fair Use defense against copyright infringement claims. For example, for secondary-market sales, such as resales of artworks, museums and galleries may not have a relationship with the artist or the artist’s estate. In such a case, the Fair Use Doctrine may allow the use of small, low-resolution images. The Copyright Act of 1976 provides that “the fair use of a copyrighted work is not an infringement of copyright.” To determine whether an allegedly infringing use is “fair use,” courts need to consider four factors: (1) the purpose and character of the use, including whether such use is of a commercial or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. Whether or not the doctrine allows the display of large-scale, high resolution images without permission is less clear. There is also no specific definition of large versus small scale, and high versus low resolution. Courts usually analyze each situation according to a totality of circumstances.

Lastly, galleries should be aware of whether or not the displayed artwork incorporates third-party content. If so, the owner of that content can potentially have a claim against the display. Possible solutions to mitigate this risk include obtaining an opinion from attorneys regarding potential Fair Use defense, working with the artist in advance of an exhibition to reach an agreement about the use,  and potentially having liability or omissions insurance in place. 

The online presence of museums and art galleries has grown due to COVID. Even now, after all venues have nearly reopened to the public, many virtual options still remain available. Although there are many uncertainties in potential copyright cases, museums and galleries that are using or considering virtual arts should conduct more thorough legal research, seek legal advice from counsel, and implement prevention mechanisms to mitigate risks.

Fair Use at the U.S. Supreme Court? The Andy Warhol Case

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The Supreme Court Building on 1 First Street, NE. 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: Lauren Liu

In our modern society where information is exchanged at lightspeed and entertainment choices are abundant, copyright infringement has become a more widespread issue than ever. The 1976 Copyright Act harmonized copyright law with free-expression principles, and for the first time, incorporated the concept of “fair use.” If the use of a copyrighted work is “fair use,” then it does not infringe on the original author’s copyright. However, the Fair Use Doctrine, and even copyright as a whole, can seem very conflicting in terms of its purposes. On one hand, copyright offers exclusive rights to copyright owners to protect their work and profitability. On the other hand, the exception of fair use allows others to use and alter the original work without permission from the copyright owner. In 2022, the case alleging the Andy Warhol Foundation of copyright infringement was the center of copyright law. The case raises questions surrounding copyright law and the Fair Use Doctrine. How are we supposed to define the line between fair use and copyright infringement? How can we protect copyright without jeopardizing freedom of expression?

The Copyright Act of 1976 provides that “the fair use of a copyrighted work is not an infringement of copyright.” 17 U.S.C.A. § 107. To determine whether an allegedly infringing use is “fair use,” courts need to consider four factors: (1) the purpose and character of the use, including whether such use is of a commercial or for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used; and (4) the effect of the use upon the potential market for or value of the copyrighted work. The case of Andy Warhol Foundation for the Visual Arts, INC., v. Lynn Goldsmith involves the commercial licensing of a silkscreen image that Andy Warhol had created based on respondent Lynn Goldsmith’s copyrighted photograph. The Supreme Court of the United States recently granted this case certiorari. The question mainly focuses on the first element of fair use, and examines whether or not the petitioner, Andy Warhol Foundation (the Foundation), has established that its licensing of the silkscreen image was a “transformative” use, and that this factor should weigh in its favor. The Court will likely look closely at whether or not the transformative use can be established simply by showing that the image conveys a meaning or message different from that of respondent’s original photograph.

The Appellate Court’s decision focused on the first and most important statutory factor: the purpose and character of the use. The purpose of this factor is to distinguish the original creator’s use and the second author’s use of the original work. Although some copying of the original will often be necessary or at least useful in making the second author’s expression clearer and more effective, the second author has to demonstrate that the second work is unlikely to supersede the original. In this case, the Supreme Court will possibly find that the Foundation’s allegedly infringing use served the same purpose—depicting Prince in an article published by a popular magazine—for which Goldsmith’s photographs have frequently been used. Furthermore, although the Foundation argued that the Prince Series was intended for communicating a message about celebrity, the Foundation has not attempted to establish that it needed to reproduce the creative elements of the Goldsmith Photograph in order to communicate that message. The Supreme Court might find that when examining this factor and all other factors, the Foundation’s use of the original work does not meet the requirements for “fair use”, and will likely rule in favor of Goldsmith.

As the legal and artistic worlds wait for a final judgment from the Supreme Court, it is worth noting that the Appellate Court’s ruling and many other “fair use” cases have already created a balance between protecting copyrighted works and allowing other creative expressions. As one of the most popular and well-regarded modern artists, Andy Warhol’s works not only bring aesthetic values to the art world, but also inspire so much creativity. However, it is obvious that many of his works contain elements drawn from public figures and other existing works. Thus, his works can become quite controversial in terms of copyright law. More broadly speaking, in the artistic world, permitting secondary users to copy protected works to a certain degree will facilitate new and creative artistic expressions. However, when such copying becomes unnecessary for the secondary user’s work, the use risks jeopardizing the original author’s rights over the original art. Such unnecessary copying also risks diminishing artists’ incentive to create future original works. Although the fair use of copyrighted works has to be determined on a case-by-case basis, the doctrine helps avoid extreme exclusions or permissions in copyright infringement cases. Creative endeavors should not be deterred by a system that categorically precludes all unauthorized uses of copyrighted works, nor should they be protected by allowing indiscriminate copying.

No One Should Own Exclusively AI Generated Art

/ Washington Journal of Law, Technology & Arts / 1 Comment
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By: Jacob Alhadeff

On February 14, 2022, the Copyright Review Board (CRB) rejected Physicist Stephen Thaler’s claim for a copyright of his algorithm’s “authorship” because a “human being did not create the work.” On September 15, 2022, Kris Kashtanova received a copyright for their comic book Zarya of the Dawn, in which all of the art was AI generated, but Kris created the other aspects of the book. The difference in treatment is likely down to questions of originality, authorship, and simply that one work required human creativity while the other was effectively the work of a computer. Though these legal arguments are compelling in themselves, a necessary and implicit policy rationale seldom explicitly recognized by the law deserves highlighting — the relationship between work and incentives. Here, copyright incentivizes Kashtanova’s creative human work while reasonably denying that incentive to Thaler’s exclusively AI generated art. 

AI art, AKA generative art, uses machine learning (ML) algorithms that have been trained on billions of images frequently from licensed training sets and images publicly available on the internet. The images these algorithms use are frequently copyrighted or copyrightable. Users then type in a phrase, “carrot parrot,” for example, and a unique image is generated in seconds. Creating novel art can now be as simple as an image search on Google. This technology has been in the works for many years, but recently, platforms like DALL-E, Midjourney, and Stable Diffusion increased the volume of training data from millions to billions of parameters and the emergent result was an exponentially better output. In response, on October 17, 2022, Stable Diffusion announced the completion of a $101M seed round at a $1B valuation. Sequoia Capital then posted a blog suggesting that generative AI could create “trillions of dollars of economic value.” The future of Generative AI looms large, and at the very least promises to expose unexplored ambiguities in copyright. 

Functionally, in generative art there are two primary entities that may be incentivized through copyright — the programmer or the user. The programmer may have spent many hours writing and training the algorithm so that the algorithm may quickly create novel works of art. The user of the algorithm, on the other hand, is “the person who provides the necessary arrangements,” basically the person who prompts the program with a phrase. Providing either of these entities a copyright to exclusively generated art ineffectively balances incentives and ignores the purpose of copyright. 

Incentives and the Purpose of Copyright 

Copyright’s purpose is to “promote the progress of Science and useful Arts.” The Constitutional basis for copyright is therefore explicitly utilitarian. The Supreme Court has expanded on this language, suggesting that copyright’s purpose is to (1) “motivate the creative activity of authors and inventors by the provision of special reward” and (2) “to stimulate artistic creativity for the general public good.” Justice Ginsburg found that copyright’s dual purposes are mutually reinforcing because the public is served through copyright’s individual incentive. This mirrors James Madison’s claim regarding copyright, that “the public good fully coincides in both cases [copyright and patent] with the claims of individuals.” At its core, copyright is a monopoly-based incentive to create art to further public welfare. This incentive is at least implicitly predicated on the notion that creating valuable creative works is not easy, and therefore requires or deserves incentivizing. If improper law and policy are adopted, then Generative AI has the possibility to throw a wrench in this balancing of incentives.

The now rightfully defunct “sweat of the brow” copyright standard awarded a copyright partially because of the amount of work that went into the effort. One reason “sweat of the brow” was flawed was because it meant that facts themselves could be copyrighted if it took substantial work to attain those facts. The ability to copyright a fact “did not lend itself to support[ing] [] the public interest” and the standard was discarded. Though improper, the underlying concept was not entirely baseless. If the Constitutional purpose of copyright is to provide incentives to artists for public benefit, then copyright law must balance incentives, which implicitly balances work versus reward. 

Incentives are not absolute but are contextual and must at least tacitly recognize the difficulty of the act the incentive intends to induce. ‘Energy in’ must be somewhat commensurate with ‘value out’ — otherwise, the incentive structure is misaligned. This balancing of incentives is one of the reasons why a perpetual copyright is unconstitutional. If a copyright holder holds this monopoly right too long after its initial creation, they are rent-seeking, and the incentive that copyright provides far overshadows the public benefit. Rent-seeking is growing one’s wealth without “creating new wealth,” which has pernicious societal effects. For this reason, courts have determined that no amount of creativity, originality, or work merits an infinite monopoly on a creative work. 

Exclusively Generated Art Should Enter The Public Domain

Neither the user nor the programmer should receive a copyright for exclusively generated art, in part because doing so would misalign incentives. To be overly reductive, incentivizing someone to dedicate their life to an artistic craft requires a substantial incentive — a copyright for example. By contrast, if the effort required to create the art is effectively null (typing a prompt into generative AI), then the incentive required to promote the useful art is effectively null. As such, the law should not be reticent to reduce or eliminate the incentive for someone to type five words into a generative AI and provide a public benefit by creating exclusively generated art. Importantly, this reasoning excludes an artist’s creations that use generative AI as a tool or a component of their work – these artist’s works deserve copyright’s protection. Given that without any guarantee of copyright protection, over 1.5 million users are creating 2 million images a day using Dall-E, current evidence suggests that generative art users are not concerned about a monopoly on the economic returns for their creations. Lawmakers should not be concerned either. 

The owners of the generative AI algorithm should not receive a copyright for every work generated by their algorithm. Some in intellectual property suggest that AI generated art should be copyrightable because without protection, there will be a “chilling effect on investment in automated systems.” The argument is basically that if the owner of a generative art algorithm cannot hold a monopoly on the generated art, then there will be insufficient incentive to continue investing in automated systems. This ignores the concept of Software as a Service and the present reality that machine learning algorithms are currently effectively contributing to lucrative business models without guarantees of copyright protection. Relevantly, Stable Diffusion is valued at $1B.  

Further, a world where the algorithm’s owners automatically have a valid copyright claim could completely undermine the market for art. Similar to how no amount of work can justify a perpetual copyright, no amount of work could justify a handful of entities with machine learning algorithms copyrighting a substantial proportion of modern artistic creation. While generative art may simply become another tool for artistry, it is conceivable that someday the world’s human artists would not compare to the volume of work accomplished by ML algorithms. Lawmakers should not reduce artistic markets to whoever can create or purchase the most effective machine-learning algorithms.