Does Generative AI Violate Copyright Law? (And What Does It Mean For Art)

[Music] [Music] disruptors and curious minds welcome to another episode of thinking on paper my name is Jeremy Gilbertson I'm a Nexus thinker I'm a founder uh in a program called right to know you it's a wellness Mastermind that is powered by writing curiosity and empathy we have my co-host as always Mark Fielding is a writer lore developer and a guy that's worked with some of the biggest brands in the world to understand this intersection and today we're exploring in real time as we do every week this Amazing Experiment to stir the pot between humanity and Technology uh we're live today but we're on Spotify and all podcast platforms we're also on YouTube if you like what you hear please go to those platforms and push the button that either says like or subscribe tells us how we do how we're doing and also you know makes us feel good when uh we're putting stuff out there that resonates Mark Fielding I want you to tell them about our book club tell them about our book club and what we're doing um could I also give myself the Monica of training Nexus thinker as well I like that oh Nexus thinker in progress yeah Nexus think training Nexus thinker work experience yeah the um the thinking on paper book club where we where we read books in a communal immersive entertaining bidirectional knowledge exchange when we learn together and yeah once a week we dive into a chapter of a book but we're an emerging Tech culture podcast but the book sometimes cross mental models psychology philosophy they're very some we're going to do fiction so yeah hit the go to the website thinking onp paper. XYZ to check that out um and Today's Show Jeremy copyright and AI I mean copyright copyright was a nightmare before artificial intelligence came onto the scene and made it even like exponentially worse my own experience I've got a vested interest in this because I write or I used to write a lot of fanfiction and actually when I wrote the apocalypse daddy the book I wrote some of that I I actually I took out in the end because I'd taken um kind of film scripts and Rewritten them and so fun fiction and I'm not sure maybe our guest today can if there's any similarities between fanfiction and where the current rules stand with artificial intelligence and content it'll be interesting to hear I think yeah we might even get into that topic of I guess I guess fair use as they as they say perhaps we could correct we could be corrected very soon um awesome well uh quick thanks to our sponsor uh Ripple wri p marketings on demand Talent platform these guys are great they've enabled uh the this show for a long time and they do great things by bringing uh vetted solopreneur Freelancers that are really good at their work uh PS Mark and I are on the platform as well should you desire to find us but uh big brands use these use use this company to help them stack these amazing interdisciplinary teams to handle these quick projects that come up and even long-term uh program in your company so check them out w.com without further Ado Mark let's bring our guest on and let's talk about AI the law and art let's do this yeah our guest anony gof um practices IP entertainment and web 3 law in Los Angeles as an associate at rmo Law PC um very interesting in itself it's a boutique Law Firm for the entertainment industry which apparently started in the Backlot of Universal Studios which is a different story perhaps um and yeah he specializes in um web 3 artificial intelligence and copyright law so yeah welcome to the show Anthony glov hey everyone great to be very early good morning to you Anthony welcome to the show excellent thanks for having me really excited to uh to talk about all this stuff it's a it's a long fascination of mine so really happy to dive in and kind of help share some of some of this excellent excellent Let's uh let's let's start from the top and let the let the fun rabbit holes uh show us where to go beyond that but we we talked a little bit in in our pre-production chat about about the idea of whenever something new comes out whether it's a technology or just a way of doing things right it has to connect in meaningful ways to the existing systems that people are used to operating in right and if it doesn't do that there there's a general disconnect and maybe it hinders adoption and that sort of thing so we're talking about AI how what are the important pieces of the current legal system that are these interesting intersections and why are they so important so I mean I think the big one that a lot of people are aware of is copyright right so under the current copyright regime uh we give very broad protection uh almost immediately to any to any you know pieces that are copy copyrightable works and the Copyright Act extends to original works of authorship that are fixed in a tangible medium of expression and that's that's a lot of words to say basically that you need to have kind of an original creative idea sorry not idea original creativity that you then fix meaning it's it's solidified and it's it's immortalized in some medium be it paper it could be digital um and and that really sets the Bedrock for what is protectable and a lot of things tend to get swept up under that you have you know literary works you have dramatic Works sound recordings architectural Works um and that includes things like cod code and that would automatically bring in all of the the models that are created that run these uh these generative AI programs it would include things um that are created by those programs any visual Works um and any chat you know chat GPT spits something out necessarily the question is well is that copyrightable and so that's one kind of big regime I think the other big regime that's uh that's really kind of getting gaining prominence and gained a little bit of prominence over the last couple of years is uh the Privacy regime and and specifically publicity and privacy rights because the question then comes up well we're developing technology which is becoming increasingly Adept at taking some image or some like some person's likeness and modifying it in ways which seem convincing to the human eye um to generate something new to to kind of simplify that it's we've got programs now that can make what looks like real people um and can take those people and and put them in different scenarios or even take real people and put them in scenarios and situations that they might never have been in and so there are moral and ethical implications to that but at the same time there are sort of questions about well what rights do these people who are being copied have and and that was kind of the Bedrock or the foundation for a lot of the conflict as some people might have been aware of between the the the wga and sag and uh thep over this this past summer so those are kind of the two big things that people are are looking at right now as far as the the legal intersection uh with AI is the key in there that first sentence you said original work and yes sorry go ahead well no yeah that that seemed to me I just jumped on that and it's like okay it's how how do you define well even taking a out AI out of the equation how do you define originality and then when you add AI to the mix how do you define originality sure well so for anyone who is uh who's really interested in getting into the nitty-gritty uh this is the language is found in title 17 of the US Code Section 102 which says in pertinent part um copyright protection subsists in original works of authorship fixed in any tangible medium of expression now known or later developed from which they can be perceived reproduced or otherwise communic at either directly or with the a of a machine or device so it's a lot of the first part of what is original um that really there's a long history behind that right I mean this Co the copyright protection in the US is stems from the the Constitution and it has seen different iterations over the years as the Copyright Act has been sort of remolded and revamped but uh we've got cases that go back significantly um that really spell out what it means to be original what what is originality there um and and some of the these like foundational cases have have sort of morphed one one in particular uh is there's the case this case from 1991 which is not not that old it's but it is uh it's called Feist Publications versus rural tele uh telecommunication services and in that case the court sort of talked about uh what originality is it's got two components it's independent creation and sufficient creativity right so you need to have been sitting there by yourself or with a team you know a group of people need to be creating this thing uh in order uh to have that first box checked and secondly there has to be some modum of creativity and and the the bar is basically on the floor for a lot of things but you need to have some level of creativity to distinguish your work from something else's because the last thing we want is to be handing up copyright protection like candy to everybody walking by and find that everyone's got overlap work so where do you actually draw the line to to kind of section off the rights of one person versus another and so those two pieces together kind of form the the basis for for original authorship and then like I was saying the the the tangible medium of expression part um happens to come from well where are you embodying this work right there there have been cases that have challenged the question of of fixation by looking at where the media uh what the media is and where the work might be stored if it is stored at all and the courts have found that you know the the the threshold there is also very low like we don't want to Bar people from copyright ownership or copyright protection to the extent that it it's uh you know applicable or valid here but at the same time we need to have some level some threshold requirement where the work can't just be momentarily in transit right you can't just have some sort of generated image which never gets stored um or saved anywhere be protected because then how do you compare that against something else in order to uh designate what the the the Contours of that protection are man you got yeah you got my brain spinning already like I I so a a common theme uh Anthony that we run across in the show quite a bit is is uh hierarchical systems and emergent systems right and I would almost argue that the legal side is kind of the hierarchical system the creative side is this more emergent system and how these two two work together so what makes like what is creativity like what's a created thing what's a unique created thing and I start thinking about all right creativity is and this is just my definition this is not a legal definition but like it's the unique rearrangement of found elements right so I can look at two things right I can look at letters and how I arrange letters into words and combinations I look at my guitar that's sitting back there and I look at the notes that make up a chord the chords that make up a chord progression but like I can't own a G chord right Mark can't own the word unique like where's the jump off point and and how does it how does the legal system navigate I know you answered it a little bit but let's continue to unpack that a little bit I mean I I think the the answer is the legal system struggles look I mean you look at the like the Blurred Line case um that was really really um a real Hot Topic several years ago and continues to be in a lot of ways where there were questions about well can you really copyri or can you have copyright ownership over a style um and that goes to question of well can you copyright a Gord and then the answer is really no I mean we need to have some flexibility for others to step in the the goal of copyright is not to give someone a monopoly power that's sort of more the the realm of patents what copyright is trying to do is is say is acknowledge that there is value in some works that are created and by ascribing that value uh and protecting that value we are encouraging the the useful Arts as they call it uh to create and proliferate um more and more works is it is it will overall help the I guess the the util it'll create and contribute to Greater utility in society as a whole um so when it comes to creativity right I mean let's let's sort of think about it in terms of a sentence uh if you were to write some some sentence like I woke up today and had eggs um we might not say there's sufficient creativity there because how how many people have made or uttered that thought in the past so there's a little bit of of historical context that goes into it um but if you know you were to for example uh write in uh write that same sentence uh like you know uh y matey I I'm a swashbuckler and had me eggs this morning that might start to qualify and that's like a very super contrived example but the first thing that comes to mind right is we'll we'll often um examine creativity in the negative and the it's useful because if we sort of exclude certain categories of things that aren't given copyright protection we can start to narrow in on what does make sense so that that same uh Section 102 of the Copyright Act goes on to say that copyright doesn't uh doesn't extend to any uh ideas procedures processes systems uh methods of operation let me see Concepts principles of or discoveries right so it's it's a long list that trying to sort of with each word bring the walls in just slightly more to uh to narrow that definition and and that scope of protection and I think that uh there's a long line of cases too that go into saying all right well is this thing that we're looking at really some form of creativity or is it an idea is it creativity or is this just like a method of operation um and and and that is you know another inquiry and of itself so to to kind of to come back high level the question of creativity is not simple and the courts know it's simple attorneys no it's not simple it's one that we have to kind of take on a case-by Case basis and in examining each individual thing we have to keep in mind those those pieces that are not protectable and compare the two to make sure that we're not you know overextending copyright protection in a way that would jeopardize creativity or uh development in in some other ways I think you mentioned Blurred Lines and I think you're talking about the song could you just give us a couple of other cases that uh our listeners can and we can go investigate after the event just to think see how this might be working like Edge Edge cases where the the law could have gone either way perhaps well this there the Sam Smith um Tom Petty thing is probably another similar to the Blurred Lines right yes and and I the Feist case that I mentioned earlier is another great example um the Feist case was there were two repeating publications of uh of white pages and yellow books um and and pardon me I forget exactly which one was that issue but uh the the the gist of the case was one company had been operating this this book and had been compiling addresses um for a a small rural community the other uh was a much larger operation and wanted to uh incorporate a lot of those listings in its own publication so that it could you know sell it to to users make profit off of it and and they went to the the rural publication said hey we would like to license from you this list of phone numbers and addresses and names would you give it to us and they kind of said yeah not really you know we're we're competitors we don't want to get into that so we we'll pass so the the first said all right that's fine we'll just take it anyway and so they took all these things and they put them in their own publication of course the rural one sued and said hey you can't you know can't do this this is our copyrightable work and the question became well what exactly is is copyrightable here is this sufficient creativity is this just an idea um in in terms of the list of names and phone numbers and such and the court says basically you know no it's not really creative right like what what are the ways that you can arrange a list of names or addresses alphabetically numerically that's that's that's insufficient doesn't meet the modum of creativity that we need so um that's not going to be enough to pass uh to pass muster here uh some other cases um in terms of the the line there was uh the line of cases between Google and Oracle which is uh very big um in terms of creating copyright protection over apis uh where the court ultimately ruled and that gets into the question of fair use the Court ruled that Google's use of Oracle uh apis in creating the Android uh operating system was fair um and and that is another sort of tech Centric way a te Tech Centric case Examining The Contours of what is protectable what is not protectable and where something is protectable how far can we go in sort of utilizing that for someone else that's really that's really interesting so before we've got some great questions coming in Mike Harris Odell I see you guys out there uh we're gonna We definitely want to get to go get to those API though I want to stay on that really quick Anthony because I always always looked at the past to help me understand the future and the present and all of that good stuff right so if I had if I had a creation if I had a song right and I wanted to just let anyone you know use pieces and parts of that song to make it whatever they want to make it isn't it very similar to me like creating API access to my IP like is there anything that we could lean on in those Frameworks to like consider how that could work in the future based on how it worked in um you know legal with apis so I I mean there's definitely a lot of parallels there I think the the argument is right I create an API it's sort of like a set of tools for you to play in my my sandbox right I'm giving you permission to be in the sandbox and I'm giving you a set of like you know I'm giving you a pale I'm giving you a shovel you can do these things and you can do specific things with my sandbox using those tools um when I'm when I'm thinking about distribution of a song uh and you're talking about allowing people to utilize it it's allowing them to really take the sandbox in non-specific ways so it kind of gets more towards Like A Creative Commons license or some other um like a cc0 license or some other license that is not as tightly regulated where people can utilize so there's there's a slight I I feel like there's a slight difference there um but nonetheless there the the parallel there is in saying all right we're okay with this copyrighted work a copyrightable work being utilized by the public the question is how where are we drawing the lines and how on the one end in the song case you've got this very broad expression that you're allowing people to to take with your song right you can sample it you can reuse it you can cut it up put it in commercials you can you can you know print it out on CDs and distribute those if anyone does that anymore whereas on the other you're saying all right I've got this software stack and I'm giving you specific entry points into that stack and specific latch points that you can access to you can pull data and utilize yourself but I don't necessarily want to you know reveal the source code or reveal other components of it um and what was really interesting in the Google case was that that there are um the the four Factor um test for fair use and uh we can get into that a little bit uh as well but the the court kind of looked at this situation as a whole as it often does under these fair use analyses and said look we find that it's important for society as a whole to sometimes permit certain uses and here this is an example where we think Google is doing something really good and it's necessary for them to use this API because it's something that all these Developers they've hired already know how to use it's something that other people that would potentially be developing for the platform would know how to use and so they're only using a small amount of of of this or whatever is necessary really for them to be able to um to pull out what they need and it it starts to create a more a larger societal benefit and so to that end they said yeah it's fair use we're going to allow it because we think that there's um there's a real benefit to to society to to humanity uh in allowing this type of activity to continue and it's an example of of how the courts often play sort of uh not just judge in the legal sense but also in the ethical uh and societal sense of trying to figure out where people might be most benefited in Hell okay I like the idea of I'm not sure if I do like the idea of Judges being the ethical decision makers in that um could I just um I don't before we get to the questions in the chat I just want to move it over towards coding and AI generated coding and coders working in collaboration with AI and I who I create a new program with the help of chat GP GPT who owns the copyright well uh the answer is it depends as lawyers love to say but really uh it the the the consensus seems to be uh nobody right now and that's really dependent on of course how much of the program is being created I mean if you're if all you're doing is you're sitting there with jet GPT you got the prompt window open and you are just code prompting basically saying write a a a set of code that does this the copyright office and the courts agree that is insufficient to Grant copyright because the going back to that that definition right original works of authorship uh there's a longstanding principle that authorship can only subsist in a human Creator we can't have a uh a machine or programmatic Creator obtain copyright protection and then there even before AI was really emerging on the scene there were cases that change challenges one one of my favorit being uh the Naruto case which n Naruto was a uh a Mak in I believe Indonesia and there was a photographer who put a camera down in this Wildlife Reserve and uh they the monkey found it uh picked it up and started taking pictures of themselves and it was like you know well the monkeys Mak obviously is intelligent enough to know what this camera is they're taking selfies like how of course they know what this is and of course they would want copyright protection how could you not afford it to them and of course then the court goes and looks at this says not quite we need a human author uh the the m is not sufficiently uh it doesn't meet the definition of human so we can't afford copyright protection there and this was of course a case that was you know it seems silly but there were other motives behind it because I think it was instituted by uh Peta and the the idea was if you can afford protection to uh an an copyright protection it is the first step on the road to affording Greater rights to uh to animals so it was it was very cleverly constructed in that way um but yeah you couldn't have authorship subsist in a non-human Creator so to the extent sorry can't you might be wrong can't you afford copyright to a to a company or a brand you can but there has to be sufficient human creation there so what will happen in the case where you have a company taking copyright ownership excuse me the company itself will take copyright ownership through What's called the work made for higher provision of the Copyright Act which there are a couple of ways to get work made for higher Protection One Way is you have some sort of written agreement right so let's say you hire me to paint you uh some sort of portrait I would I would sort of uh dissuade you from doing that because I'm not the greatest painter but let's say you decide anyway yeah I want you to do it we'll have an agreement in that agreement you'll say I'm specifically hiring you for the purpose of creating this as a work Made For Hire under the Copyright Act and or and I will be you know the author from the DAT of its Inception and so I create it I'm not the author you're the author immediately and that's sort of Route One route two is there's an employee working within the scope of their employment for some company so if I am an employee of company X and all we do is we I guess shouldn't use that let's say I'm a compy I'm an employee of company Z cly we can't use that example anymore it's just I know right so I'm an employee of company Z and all we do is we create art prints right I don't have authorship I've signed an employment agreement that says yeah company Z you are the own you're going to be the author of all these things there is a human so it does sort of tick that box but the the company itself doesn't have the autonomy and the necessary Humanity to be able to satisfy that first requirement so the employees do they they kind of create the work the authorship flows up through the work for higher provision and then the the authorship will subsist there okay thank you yeah a lot of a lot of really good questions uh rolling in so let's let's let's try and uh unpack Mike Harris's question here and I think you know a lot of it you know there there is there's precedent for existing material being a catalyst for Innovation for something new right and you know how much of that existing information is used and all that we've been talking about creativity and defining creativity Hier archical systems defining emergent systems right but what what um other than kind of what's happening with the scale and the speed of creation that AI allows us to do what are some of these unique challenges coming up for the legal system and for for people and creators Post open AI era like what what are some of the what are some of the hot buttons there and I think you hit on some of them but maybe we can SP expand yeah so um you I work with a lot of film and television production companies and uh for anyone who's not familiar with the industry often times like let's say you're making a documentary you're going to want to use what they call archival footage or old photographs uh foot video footage of some event if you're if you're you know making a documentary about the the creation of uh Pizza in the United States you might want to reference videos or photographs of the different you know pizzerias in the country right and you don't have those so you necessarily will have to go and find some license work maybe there's a a new station that covered some pizza shop opening up and you want to use their video footage right and so that's an expensive industry I mean it takes a it it's it's a lot of money that goes into licensing uh the the materials and also a lot of money um to pay attorneys like myself to go and negotiate those licenses so a lot of companies are thinking well what could we do uh as far as like making this a cheaper Endeavor for us and of course generative AI presents a really great solution like why would need to go and a license archival footage when you can have some uh some generative AI protocol created for you so the the question then becomes well all right we've got this this this Photograph let's say that was created by Ai and we want to include it in our film uh of course when you're creating a film you're ultimately selling it to someone or licensing it to someone be it you know Netflix or an Amazon or Hulu whoever right and they want to make sure that they have you know no doubts there's no challenge to the copyright ability and the copyright protection of the program generally speaking the film The the television series will be copyrightable but then it's got this piece in it that like I just like I said earlier is not going to be copyrightable so how do you kind of navigate that uh and that and that's a big question right now is all right to the extent that there are copyrightable Works being created where we're incorporating non- copyrightable works because they're you know they don't have a human author how do we get around that protection how do we figure it out um the best way for companies to be able to still you know produce these these uh creative works but utilize uh this new technology and and that's you know like I said not really clear yet we're we're still kind of figuring it out and a lot of studios and networks are still figuring out their their tolerance level and and their uh their appetite for risk on these things uh especially with a lot of the cases coming out where people are alleging that any output created by uh generative AI is itself an infringing derivative work and that's a kind of a different rabbit hole that we could go down but there are a lot of uncertainties there and so right now I think people are are trying to you know we'll come to someone like myself and they'll say hey we have this idea we want to put this you know XYZ pieces in this documentary or this production that were generated by AI can you give us a legal opinion on whether or not this is going to be sufficiently safe uh for us to incorporate and we'll go and we'll we'll pull out you know the we'll talk about the different the precedential cases the the cases that might be bubbling up through the the judicial system and say yeah this is fine this is not fine so that's kind of the the the biggest hurdle or obstacle right now um the second being let's say you are utilizing uh generative AI to create a photograph of some person because you don't want to license archival footage of that particular person well then it brings in all the other questions of the right of publicity and the Privacy rights of that person and whether or not you can actually utilize that and that's again another sort of separate eory from the copyright side of things under a separate legal regime um and those are really the big two of the biggest obstacles right now um aside from the fact of uh the obvious well how do you get it to output something that is even like what you want like how do you prompt it in the right way yeah I think one thing and you know I've I've I've been on some of these platforms like we all have kind of messed around and and and that sort of thing but like what's are there any platforms out there that are that have 100% cleared and verified all of their Source material meaning you know if you have an AI platform Anthony and your Source material is coming from Mark and I Mark and I have 100% agreed that you can do anything you want with the source material has anyone ever done that yet or are they starting to do that like I think that would be an interesting Avenue for someone to jump into it'd be pretty pretty terrible um I I protocol wouldn't it yeah you know I'm not really sure I I don't think so is is the is my answer I I think that the majority of uh models that are out there right now have at some point trained on the databases that have infringing works like open AI is pretty much admitted it the the other uh big players in the industry have similarly admitted to the fact that there are copyrightable Works included in their data set they're really heavily relying on the fair use uh side of things to argue yeah no well obviously we took this we need to it's it would be impossible like Mark was saying it would be a pretty crummy AI if you didn't utilize copyrightable works if you only relying on things in the public domain or things which You' license um it's too cost prohibitive to license everything these are all arguments that people are throwing out there um so there's this's this question of well what uh where where are we going to draw the line but to my knowledge there's no one out there who's really like buttoned up I I know for a fact that like the the New York Times case against open AI they were talking about it they were in conversations about well how can we license all of your your content or a certain portion of your content to incorporate in the training data set of our uh of our models and those talks fell through and then you know now New York Times is suing and they've done allegedly they've done some very clever some massaging to the to the prompts and to the but um on I think there's a group of authors John Grisham and some the authors who are suing open Ai and I think there's been a couple of cases that have gone to court and the judges have sided against the artists and the creators I mean where are we I mean are John grishman the authors going to are they kind of setting the scene for what happens next or are they is it going to go to fair use as you say and they'll be pushed out how do you think it's going to play out I so I think that the the fair use is an affirmative defense right so it's not necessarily a uh a a kind of cure all for this this question of are you infringing it's a part of the process of someone asserts a claim saying you're infringing you you come back and say no I'm not why because uh my use is protected it's protected by a fair use Doctrine um and so there's this kind of push and pull there are a lot of cases bubbling up right now and there cases against open AI against meta against Microsoft off against theability like all these different companies are basically being sued by like John Grisham by the author's Guild by by various actors within the the copyright Community um to basically try and tease out what these uh what the answers are here I think that the the question of fair use seems to be where most things are are are kind of landing and where they're sticking and um there there's no definitive answer yet because the the way that the the hierarchical judicial system work works right it's like a lot of these cases are are still at the district court level there's always going to be room for them to be appealed to the to the Circuit Court level and then from there it could ultimately be uh you know appealed to the Supreme Court which would then sort of as Arbiter of the land decide all right well here is the patchwork of decisions that have come come up from the various circuits and the district courts within them uh we're going to try and consolidate these different the different disperate kind of opinions into one cohesive framework and often times they they you know wax poetic for pages and pages and don't really don't really get to a distinct or definitive conclusion but kind of give you this this really vague answer um and that's kind of what I expect is going to happen here as well right for the time being um there there isn't a lot of clarity and I think a lot of people are um really poking around to see what can be accomplished uh there was a really great um kind of research compilation that was put out in late September by Congress that's cited to this question of what is fair use in the with respect to Ai and how does it fit within the copyright regime what is copyright ability when it comes to Ai and they they examined a lot of these cases and a lot of the questions that are currently bubbling up and so I'm excited to see where that is going to go and I I recently um worked on uh Pepperdine National entertainment law mot Court competition which is a a Mot Court competition they hold um they used to be annually they're kind of booting it up again after Co and I wrote The Prompt for that which was about a fictional sort of entity uh called samai or samur AI uh that had created a generative AI program to create videos and as part of its training data set Incorporated uh the the king of the gourds Trilogy of films uh which uh you know is a little bit of a a Twist on a another famous Trilogy of films involving a fellowship and so there was there were questions that i' kind of peppered in to dance around that that was nice it was it was a really really fun time and so there were um schools from across the country that you know came together and and presented oral argument they all wrote briefs on various sides on the the petitioner respondent side either arguing for against fair use and then they came to the the law school and they had oral argument and there were some really really clever uh arguments that came up about well this should or should not be considered fair use on the one hand right there were two questions so let me back up there were two questions the first question is all right we've got this company they they've admitted to ingesting uh these these copyrightable works as part of the training data set is it still protectable as fair use right so that's kind of looking at the input then on the output side of things the question was does the output because there in in this prompt it sort of created this this scene where uh what um gang do uh the B has is in a field and he whistles to his trusty Steed uh Carfax uh a saddled narwhal right narwhal comes prancing through the field reminiscent of another uh similar scene and the question was all right well does that video then uh of a narwhal sort of replacing be or gal being replaced by Mickey Mouse which I can say now there public domain uh Mickey Mouse is replacing gangolf here uh and there's a narwhal instead of a horse are are these things derivative works of the original King of the gourd scene right um and so that's addressing the output side of things and those are the two questions that are like constantly like all the cases you see bubbling up those are the two things being challenged to sound like a Monty Python stick sketch what you know I'm flattered that's that's quite quite flattering no that's amazing I think I think a lot of the questions and Charlie Northrup great to see you in the chat previous guest um knows a lot about this stuff and I think a lot of you know Charlie's question given the statistical model is built around using these original works right who the infringer is who you know a potential contributory infringer is if any right I think we talked through some of that um you know interestingly in real time um we there was another um I think Odell had a question earlier in the chat and I've seen a lot about uh this word and you might have to walk me through this uh Anthony because I'm I'm not even close to an attorney but like the idea of this word transformative right and how that applies to existing work and what makes a work transformative enough to potentially be a new work is that how that all sits and that word is used yeah so the the transformative is part of the analysis of fair use right so I I kind of hinted at this earlier but fair use is an analysis that examines what they call the totality of the circum irst ances under four factors right so the first factor is the purpose and character of the use uh and whether that including whether that use is commercial or if it's not nonprofit right the the second factor is what is the nature of the copyrighted work right is this the kind are we borrowing or taking from a work which sits at the core the heart of copyright is this some sort of novel is this a a visual work of some sort that really comes to the the core of what we want to protect under the copyright law the third factor is the amount and substantiality of the use right um in relation to the whole are you taking the entire film and repurposing that are you taking the entire book are you only taking a sentence out of this one page of a thousand page book right what is the percentage of the work that you use where you've got more uh the the more of the work that you use the less it weighs in favor of fair use generally speaking speaking then the last being uh the effect of the use on the the market or the potential Market or the value of the original work and this transform the question of transformativeness really goes to uh that first factor of what is the purpose and character of the use and there was a really great uh case that came out last year uh it was Andy it was the Andy Warhol Foundation against uh this uh photographer where the Court was really uh kind of backpedaling a little bit on what transformative means um but the the gist of it is are you taking the work the original work and are you doing something to it in a way that really changes the character of that really you know modifies it in such a way that it furthers the purpose of copyright so that we're adding to the creativity or we're recasting this work in a new light um and in the context of the the Andy Warhol case they the the question was about this Photograph that Andy Warhol had taken of Prince the photograph was licensed to a magazine to be printed in the cover um and it was for one magazine years later after Prince passed away uh the the the silk print that Andy Warhol had made of this Photograph that was featured on the magazine was again reused by that that same magazine um to kind of commemorate his death in in in this publication and the photographer Su and said no you can't use it it was for a license it was a single use license and it was only for that one publication and you've exceeded that and the the foundation argu will know obviously this work is is fair use because it's transformative we took a photograph and we recast it look at how different this silk screen is right look how different the elements are it looks nothing like it um and the court said yeah not quite because part of that transformative analysis is where are you using it and what is the context and and what exactly is being done to it and and in one case you had in one instance you had the use of a photograph to make a silk print uh silkream print um that was for a magazine cover and then the other it was also used on a magazine cover so sorry not transformative enough um and then you look at uh the the there's another case Campbell vers AUP Rose which is very uh big in the transformative uh inquiry and in that case the two Live Crew had um repurposed the the song The the tune from uh pretty woman and created their own version and the question was well all right they they're creating this rap version of the song they're changing a lot of the lyrics and they sort of poking at the the purpose of the original this is sufficiently transformative uh and and and if it seems a little hand wavy it kind of is I mean the courts will often like sit look it's a it's a person at the end of the day these are not omnipotent beings that are somehow divining some or you know ordained truth onto US they're people like and me who were sitting there trying to get it right and they're thinking all right well we've got this new emerging genre of music we don't necessarily want to stifle it and this the part of this is figuring out how do we draw where do we draw the line so that things are fair for both sides we want to encourage creativity but at the same time we don't want to completely negate the protection that is given to the original author yeah this it's it's definitely like murky murky Waters like for sure so our audience right Blurred Lines right our audience is definitely tracking like almost in real time with this conversation which is amazing we have another uh uh another audience member chiming in about you Weird Al Yankovic right so you talked about transforming Tunes is is I mean is that kind of the fair use the parody aspect of this thing I think like weird weird y y Yankovich he he got permission from the original artist normally did he not does that that makes a difference yeah he he's generally I I I'm almost certain that he's going and Licensing the rights I mean in music as you know uh Jeremy there there there's two parts right there's the sound recording and there's the musical composition and so he's probably going and Licensing the the rights to the musical composition um to to be able to modify and trans and transform it uh or or create his own version of it right but uh parody and satire are big questions as part of that transformative inquiry where we often will say all right uh if something is par is a parody a true parody right uh it gets it it typically tends to be transformative in nature because it can't make a you can't make a parody without borrowing from the original work right otherwise the there would be no periodic effect so there's a a sort of a uh fair use is necessitated in these contexts and we want to permit that in order to again facilitate creativity and more creation of these of these parodies I think that the the biggest thing that that my biggest Takeaway on this one is like there's no easy takeaway and a lot of it is a lot of it is like kind of like you know having your Ducks R because you think about like think about going back to hip-hop right so you have like the most sampled guy in hip-hop is a guy named Bob James you know transformative jazz artist like amazing amazing work but like a lot of his stuff really defined the the very basis of the sound that hip hop is now known for right but you start thinking about all right if I bring in like a high hat pattern from this record and I put it into the song and I use it as my song then you start thinking even though it is used how influential is that use to making that thing what it is and there's a lot of subjectivity to all of this stuff you look at the framework right but you have a hierarchical system trying to be creative with subjectivity a little bit as well oh absolutely I mean there are entire genres of music that are really fundamentally centered on one thing like look at drum and bass where the amen break was the thing right like if you didn't have the amen break and you didn't you didn't incorporate that you weren't quite getting it but that was the the sort of foundation for that genre and then it later took off and and started to to incorporate more things and more elements uh there's there's a lot of this sort of thing happening in music especially where you find that there are specific pieces that are so instrumental to capturing a particular style um that we want to be able to protect that we want to encourage that sampling is instrumental to the development of of rap because it was the the po sound that really served as the the the foundation for a lot of these Tunes to be able to retell a story and it was a big part of that storytelling was in recasting these these pieces from other artists and and sort of paying homage to them so yeah I mean I totally agree I I I I used to say that I'm a music producer on the side I unfortunately haven't had as much time to do it but whenever you're you know when you sit down and you're trying to make a song you're looking to your your Inspirations your your creative predecessors right like for me um there are artists that have been really instrumental in my music knowledge my formative music knowledge and I will look to them in creating whatever work that I'm doing I might sit down with a guitar and write a melody that is reminiscent of some other song by dep peso that I I really listen to as a kid um but the process is similar right if you are doing that versus you are sitting and you're cutting up a break from some jazz record so that you could lay down you know some lay down a beat for a track uh it's it's very much the same thing you're just applying that creative inspiration in a in a different way yeah no ABS absolutely um so I want I want to be mindful of time but I do have one question I think that that would be really helpful for for Brands because we have a lot of brands that you know that that listen to the show to figure out like how to apply and and make sure they're using these emerging texts in in the in the right way so if you were to advise a brand and we let's not call it advice because I know we got to be careful but if um if if if I have a brand and I've got a team of people working underneath me um and you know those that team of people's in a marketing department let's say so the marketing department is writing copy the marketing department is putting Graphics together using logos all of that kind of stuff What's um how can I make sure my team understands what is okay to use from an AI perspective Ive and what isn't like how would you how would you kick that discussion off okay so fundamentally I would say assume that anything that comes out of an AI is not copyrightable anything that is popping out of chat GPT anything coming out of mid Journey or Dolly not going to be copyrighted right where you can get some sort of copyright protection is when you have human intervention so if I were um a brand right again sorry should prep this not legal advice but um if I have a brand and I'm creating these things right I would utilize chat GPT to create marketing copy and then I would maybe generate four five six seven whatever number of different uh outputs and then I would take them and I would sit down and sort of as an editor pull together the pieces that I want and create a complete final copy based on that and in doing so I won't get the protection on the individual elements that were might you know that might have been taken from the different prompted outputs but will get protection over uh the the whole compilation and the Assembly of those pieces and that's kind of like the the the Zar of the Dawn graphic novel situation where the AI generated specific images and they were woven together into a story and we get certain protection to the narrative aspects and the overall story as a whole the second thing is when it comes to images it's a similar sort of thing right if you want to create an image it doesn't matter how much prompting you do to kind of focus the image in on one particular thing or another it's not going to change the uh the particular uh copyright protection but if you're taking and you know you're photoshopping different pieces together you will get protection potentially over the compilation or the assembled final piece so if Mark's on my team he's a copywriter I'm the CMO he uh jumps on chat gbt to help kick off an article that is you know going to be some kind of thought leadership piece for me and and the company and everybody right are we going to start seeing a beneficial tag on the bottom of that that says you know created by Mark Fielding with the assistance of AI like is that how we get get into this or I mean I would challenge people to think well what is AI um fundamentally which is I I know a very open-ended question but we've been using AI for years we just never really called it that right if you're going into Photoshop and you're using certain tools built into Photoshop there are AI elements or machine learning elements that have been built into that that software suite to help facilitate certain Transformations right um and and in a f in a fundamental way I I sort of challenged the the prevailing thought on AI as a tool um and say well to what extent is this just another tool that humans are using to then further their creative output right um and I think there have been a lot of people that have tried this Challenge and it hasn't worked yet it could work I think it should work um because we as a society are progressing in our thought we're progressing in the the the technology we have available and so we have to adapt a little bit to how these resources are being utilized and maybe the classification of what is a tool versus what is you know a separate entity needs to change deep questions what a what a fascinating discussion Anthony we we appreciate you joining the one one kind of lingering question that I'll add on to what you said for for the listeners out there is you know is is AI just an extension uh and a more efficient version of what we've already done in the past right so um but AI is active whereas the tools in the past have been passive and I think there's a big difference between the active and the passive use of a tool um you two are both in America so you're speaking about this as Americans and I'm from England and I live in Europe and so copyright you're talking essentially about American copyright law and we have every single jurisdiction has different copyright laws so having that I mean let's not go down there right now but that's a big obstacle listening to you and I think transformation input equals output input output long term I I I can imagine a future a long way in the future where the the very the very notion of copyright becomes an Antiquity that the idea that you could copyright especially in some domains like computer coding how how you copyright that we're a Glo a human hive mind and it belongs to everybody and maybe um AI has kind of the the start of that path to no such thing as copyright just because it's just too difficult to ascertain where it lies yeah I'm sure Disney wouldn't let that happen but you know there are yeah but they said that about Mickey Mouse didn't they what happened well they're trying to different they're trying to trademark right now so we'll see how that works out for them but no I completely agree it's it's it's a real interesting question of how far going to take it do we like is this the type of protection we want to keep going into the future and to the extent that we do we're going to have to adapt it's that's a necessity I think that's a very good way to end adaption is the key to survival is it not so yeah May amazing discussion you know folks in the chat Odell Mike uh Charlie bring a friend next time if you like what you heard uh and uh you know jump on these platforms guys thinking onp paper. XYZ you can see us in any podcast platform click a like or follow And subscribe on our YouTube channel Mark before we get out of here give a give him a quick little nudge on the book club and we book club book club I don't have a book to meet yeah join our book club and come and join us in one of these little squares that we have here and we can talk about books together at the moment we're reading um the Design of Everyday Things which is about ux user experience good design bad design um across all domains and all Industries so come and join us we'll be there excellent guys thanks uh thanks for joining us stay disruptive be curious keep thinking on paper take it easy guys thank you Anthony thanks guys take care

Channel: Thinking On Paper Podcast & Book Club

Views: 2,495

Keywords: Is AI-generated content protected by copyright law, Copyright law for AI-generated content, Is AI-created content protected by copyright?, Copyright implications of AI-created content, Does copyright law protect AI-generated content?, How does copyright law apply to AI-generated content?, does ai violate copyright, who owns the copyright to ai

Id: IaPZfvKNKuo

Length: 55min 36sec (3336 seconds)

Published: Thu Jan 18 2024