Legal Issues with Using AI-Generated Content in Your Business
ChatGPT and other AI content generators are changing the landscape of marketing, content creation, and social media. Yet, this extends beyond business. Naturally, it is also impacting the legal landscape in ways that have not yet been specifically addressed by courts. However, we can make predictions about how a potential case will be decided based on a simple application of copyright law and review of the terms of service for these tools.
As a lawyer serving coaches, course creators, and content creators, many of whom are indeed leveraging this new technology, my mind immediately went to several concerns about these trending and very hyped-up content generation tools. Before you wholly embrace this time-saving technology, a number of pressing legal questions must be addressed:
Who owns the copyright to AI-generated content? Who is responsible for AI’s plagiarism? Can you be accused of copyright infringement after publishing AI-generated content? Is the fact that you yourself did not write the content (but rather used ChatGPT to generate the content) a defense to copyright infringement? What if AI plagarizes your content? Do you have any recourse?
If you are a business owner, then you must get to the bottom of these questions. With a lot to unpack, let’s begin with an understanding of how AI-content generator tools work.
How does AI create content?
AI tools essentially scan a vast amount of information and data, observing patterns and creating rules and predictions based on its synthesis of those patterns. AI generated content does not then come from an original thought but the parceling together of many different existing publications into a “new” piece of content.
Who is better situated to understand how AI creates content than the leading ChatGPT tool itself? Here’s a short portion from how ChatGPT describes its content generation process:
“The model is trained using a vast daaset containing parts of the Internet, including books, articles, websites, and other text sources. It learns to associate patterns and generate coherent and contextually relevant responses based on the patterns it has observed during training.” - ChatGPT, Jun 25, 2023.
AI is not limited by time or energy, nor does it suffer from occasional brain-fog caused by lack of sleep. Its ability to scan and synthesize an immense amount of information and produce remarkably logical and relevant content in mere seconds is something the human brain cannot compete with. But, on the other hand, at the time of this writing, AI-generated content is, in essence, a derivative of works that already exist. And while we can philosophize about whether any human truly has an “original” thought or if we too are merely synthesizing the information we are exposed to and expressing it in semi-unique ways, the legal implications of AI basically copying other existing works cannot be ignored.
With this basic understanding in mind, let’s address those pressing legal questions that will very likely have an impact on you as a business owner and/or content creator at some point, whether or not you personally utilize AI content generator tools. Keep in mind that many of these questions have not yet been answered by courts, but I have answered them from my perspective as a copyright law practitioner.
Q. Who owns the copyright to content generated by AI?
When the “creator” is not a human, this question can sometimes get a bit complicated like that time a monkey in Indonesia gained international fame when it got hold of a camera and took a selfie. Normally, a photographer owns the rights to all photos they take, but “ can a monkey possess intellectual property rights?” the world pondered. And if a monkey cannot own intellectual property rights, then who owned the photo the monkey took? In the end, the U.S. 9th Circuit Appeals Court ruled that a non-human does not have rights under U.S. copyright law.
The question of who owns the copyright to content generated by AI seems much easier to conclude, as the AI-software could be seen as an extension of its owner or, to the extent that AI tools could be argued to have their own agency in the future, it acts much like an employee producing original work in the scope of its employment. In both cases, the AI generated content would be owned by the software company.
Lawyers for OpenAI, the creator of ChatGPT, seem to agree with this point of view based on a review of the terms of service they have drafted. Presumably, in an effort to transfer responsibility for all the legal problems that can arise in the way AI generated content is created, they’ve generously assigned and transferred all copyright ownership to “Output Content” or content that is produced by the AI tool to you!
The only reason there would be a need to assign the copyright to you is if you did not already or automatically own it.
So, for you skimmers, here’s the bottom line:The software company would have owned the copyright, but they assigned and transferred it to you in their terms of service. You own the copyright to the content ChatGPT generates for you.
Q. Who is responsible for AI’s plagiarism?
A. In addition to transferring and assigning the copyright of all output content to you as the end user, ChatGPT’s terms of service also include an indemnification clause (where you agree to step into their shoes and essentially take the blame for any copyright infringement) and language disclaiming responsibility for any copyright infringement. These clauses, in my view, are clear efforts on the part of the software developer to distance themselves from the known issues of copyright infringement involved in AI-generated content and pass off that responsibility to you, the end user.
Most likely, YOU will be held responsible for publishing any AI generated content that contains plagiarism. However, courts have not yet addressed these issues specifically. The question will be whether the assignment, indemnification, disclaimer, and limitation of liability clauses will all be enforced in similar terms of service.
Without any of these clauses, both the software company and you may be legally liable for copyright infringement.
Q. Can you be accused of copyright infringement after publishing AI-generated content?
Yes. This would probably be true even without all of the clauses protecting the software company in the terms of service agreement, but is even clearer in light of the express terms you must agree to in order to use the tool. What’s more than you being accused of copyright infringement, is the fact that you agree to indemnify the software company (take the blame) if it is accused of copyright infringement in the output content it generates for you.
Q. Is the fact that you did not write the content (but used AI) a defense to copyright infringement?
No. You are responsible for having published the content and, again, according to the terms of service of ChatGPT and other tools, you are contractually obligated to indemnity (step into the shoes of/take the blame for) the software company for any plagiarized content or copyright infringement the tool generates.
Q. What if AI plagiarizes your content? Do you have any recourse against the publisher of that content?
Yes. You would treat this situation the same as you would historically - send a cease and desist letter, file a copyright infringement report on a social media platform, or send a DMCA take-down notice to the web host.
Q. If someone plagiarized “your” AI-generated content, do you have any recourse against them?
Interesting question. Yes- you probably have the same recourse against them as in any copyright infringement situation but this may be limited if the content itself was infringing against someone else’s copyright. Simply put, if you were using plagiarized content that wasn’t original enough to be considered a new and original work, then you do not have rights to it to begin with and therefore cannot enforce rights against someone else.
So, what does this all mean for you as a business owner and content creator? Now that you better understand the law and legal pitfalls of blindly relying on AI generated content, look out for our follow piece on this topic. In Part 2, we will be outlining the dos and don'ts of using AI tools to generate content, so you can leverage this powerful technology while ensuring the integrity of the work you are publishing.
In the meantime, if you are experiencing a problem with copyright infringement, either because someone is copying your work without your permission or you yourself have been accused of copyright infringement, it’s time to speak with an experiencedcopyright lawyer.
I welcome you tobook a complimentary consultation and look forward to speaking with you!
Disclaimer: This article is intended for educational purposes only and is not legal advice.