Intro to Artificial Intelligence in Intellectual Property #103

Welcome to the Screen Lawyer Podcast! 

On this week's episode, we will dive into the fascinating topic of artificial intelligence (AI) and its impact on content creation. AI-generated content has become increasingly prevalent in our modern world, and it's truly remarkable. However, what many may not realize is that copyright law still applies to these creations. Whether you're planning to release AI-generated content or simply interested in the subject, you'll be intrigued by how copyright law intersects with this emerging field.

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Transcript

00;00;00;08 - 00;00;14;02
Narrator
The Screen Lawyer Podcast is brought to you by Capes Sokol, Attorneys at Law.

00;00;14;02 - 00;00;40;29
Pete Salsich III
Welcome to the Screen Lawyer Podcast. The intersection of the entertainment world, intellectual property law and emerging technology, where we discuss the legal and business issues surrounding any type of content that ends up on your screens. I'm your host, Pete Salsich, The Screen Lawyer. Pete also here, The Screen Lawyer.

00;00;41;17 - 00;01;11;16
Pete Salsich III
Welcome to The Screen Lawyer podcast. You know, this week we're going to get started in on a series of episodes focused on artificial intelligence and AI generated content and the legal issues that surround it. You know, if you're like me, you're just every single day there's some new advertisements, some new emails, some new social media posts, some new offering about an AI product might be checked, it could be anything really out there.

00;01;11;16 - 00;01;32;19
Pete Salsich III
There's so many that are telling us, Hey, use this thing to create your content. And, you know, one of the things I've noticed, it's interesting and it makes sense if you think about it, a lot of these are pitched to us as timesaver as work savers. Hey, you know, you got to write a quick article. You got to write a quick proposal.

00;01;32;23 - 00;01;56;16
Pete Salsich III
You need help in your CV or your resume or a cover letter or let's say you got to write something much more important, like a legal brief A on it. You can use me, put a few prompts in, put in some basic information, and instantly there's some amazing content and it's pretty cool how it works. I mean, I played with it and it's it's awesome.

00;01;56;16 - 00;02;26;27
Pete Salsich III
It's freaky actually. Probably. And maybe to you too, but maybe you're way out in front of things. You know, one of the things that I've experienced over the years in working with creative people and we've talked about this before, the creators and the technology that moves really fast and it's always seeking the next thing, the next way to create, the next way to do something, the next platform on which to display that certainly something that's exploded in the last several years.

00;02;27;26 - 00;02;57;00
Pete Salsich III
But the law moves more slowly. And the reality is if you're putting content out into the world on any kind of a screen whatsoever, copyright law is the law that's going to govern what rights you have in that, what control you have over who can see it and where, whether you can make money on it. All of those things are basic, the rights that a copyright owner has.

00;02;57;14 - 00;03;17;15
Pete Salsich III
So that's our foundational standpoint here, talking to people that are putting things on to screens in their business and certainly for fun and for art and everything else. But let's face it, many of us are also trying to make a living by putting art out into the world. And so in that case, you need to own the copyright.

00;03;18;16 - 00;03;38;20
Pete Salsich III
Think about it this way and let's say whether you spent your own money and time to create something or you got investors, you know, it might be your friends and family or maybe you have a much bigger project and you've gone out and raised money from investors and gone through the whole legal side. Well, those investors are expecting you to pay them back.

00;03;39;03 - 00;03;57;06
Pete Salsich III
If it's your own money, you're expecting to make the money back. Well, one of the ways that you make that possible, first, you got to make good art. You got to make good content. But let's assume you do right. You know, you're going to make great stuff and people are going to love it, but are they going to get it for free or are they going to pay for it?

00;03;57;20 - 00;04;22;27
Pete Salsich III
Let's say you're going to sell tickets or licenses or whatever, and you in order to that, for that to work for you, you need to be able to control that. You need to be the only one who can put this out into the world. So if that's your business model, it needs to work such that people can only see it if they have paid for this subscription or downloaded the movie or whatever.

00;04;22;27 - 00;04;54;05
Pete Salsich III
If, however, you don't own all of the copyright in your finished product, somebody else does, or some part of it is in the public domain, well, maybe that product can get out into the world and people might be able to see it for free and suddenly your market disappears. Now you can't pay your investors back or yourself because you can't generate the income that you expected because it can get out in other ways.

00;04;54;21 - 00;05;24;21
Pete Salsich III
That's a sort of a simplified picture. But the point I want to make is really clear here. The foundation on principle underlying the film industry, the music industry, really the television industry, digital YouTube channels, basically any kind of revenue generation from screen content is based on having one copyright owner of that content who gets to dictate how it gets out there through distribution or whatever.

00;05;25;07 - 00;05;52;24
Pete Salsich III
So hold that thought in mind. One copyright owner and you know, we over the years we've had plenty of issues and cases that discuss, well, maybe there should be more than one copyright owner, but it was always a fight between humans. You know, maybe, maybe, you know, I had I've had litigation matters where I represented a musician who created a lot of the key aspects of a Grammy nominated song.

00;05;53;05 - 00;06;17;21
Pete Salsich III
And that person, they didn't the producers didn't have my client sign a work for hire agreement, didn't have my client sign an assignment agreement, didn't have to sign anything of The reality was my client was a joint owner of the copyright in the finished song, the whole thing. He contributed a certain aspect of the music, other people contributed lyrics, other people contributed other music.

00;06;17;21 - 00;06;47;18
Pete Salsich III
But the reality is because they didn't get things done in writing, they didn't get all of these humans to contribute their rights into one copyright owner, which would then it was intended to be the record label. So my client was still a copyright owner even after that piece of music made it all the way up to a record label and got out in the world on CDs everywhere as a Grammy nominated song generated a lot of money for the record label.

00;06;47;24 - 00;07;08;20
Pete Salsich III
The record label thought it was the only copyright owner. The record label would then pay royalties and so forth, according to the various contracts that were signed. But because the producers never got my client to sign that contract, he got to go all the way up to the record label and say, I get a share of your profits, period.

00;07;09;06 - 00;07;32;28
Pete Salsich III
And that was the correct answer. Under copyright law, the mistake was not capturing that ownership interest at creation. We've got lots of cases like that over the years and the law knows how to sort those things out. That joint authorship is the default unless you get things in writing. But it was there was never a question that about a copyright ownership in the whole thing.

00;07;32;28 - 00;08;04;11
Pete Salsich III
It was only who had pieces of it. Well, now fast forward today. If you have let's say you have a film, you make a 30 minute film, and 20 minutes of that are stuff that you shot, you wrote, scripted everything, and you've got all the humans that worked on your project. They've all signed work for hire agreements, done everything you're supposed to do to capture all of the human contributors into one copyright ownership.

00;08;04;11 - 00;08;33;10
Pete Salsich III
You're the producer. But 10 minutes interspersed throughout your film is content that was created through an AI engine. Maybe you gave some props. Hey, we need a could be all the visual backgrounds, could be the special effects, could be some animation that you brought in. There could be a lot more than that. The point is, it's really enticing and intriguing to use an AI to generate stuff to make your project cooler.

00;08;35;09 - 00;09;18;12
Pete Salsich III
But the risk is in. The Copyright Office recently made this very, very clear. Only content that is created by humans, human authorship is a requirement for copyright ownership. In a recent case, the Copyright Office completely reaffirmed that only human authorship can generate a copyright registration. And so this came up late last year, a graphic novel comic book called Zari of the Dawn was submitted to the Copyright Office for registration and it received a registration is not surprisingly, the author was identified as the author of the comic book.

00;09;18;12 - 00;09;50;17
Pete Salsich III
It included a, you know, typical graphic novel, included lots of pictures, beautiful pictures, artwork, and then it included dialog, a story. You know, this happened, then this happened, then this happened. Typical a script combination, graphic novel structure, very standard. Got the registration. Well, then when that registration was issued, there were the author and others started talking in articles and in publications celebrating the fact that an AI generated graphic novel had been granted.

00;09;50;17 - 00;10;21;11
Pete Salsich III
Copyright registration was a big thing. It was like, Wow, that's pretty cool. Except the Copyright office hadn't been informed. And the original application that part of the book was created through a AI generated content. So they issued a letter essentially reexamining the registration and issued a letter to say, Well, explain what was Well, it turned out that the author had used the AI engine mid journey to generate the graphic images in the book.

00;10;21;15 - 00;11;00;20
Pete Salsich III
Now she had provided prompts, she provided dialog and script. So there was certainly information put into the engine to create the graphics, but the graphics were all created by that engine. And then she had written the dialog, organize the story, flow all of that. Well, the Copyright Office not too long ago issued a revised registry and it said that only the portions that were created by the human, So the dialog, the script and the overall direction, the compilation version, the order in which the story is presented, those are entitled to copyright protection.

00;11;01;03 - 00;11;28;26
Pete Salsich III
But the graphic images, all of this beautiful book that was created by the AI, no copyright registration because and it reaffirmed a longstanding rule that only works of human authorship can be granted copyright protections. That's the law. And I don't think that's going to change. This is not a new concept. It's essentially the entire point of protecting works that are created.

00;11;28;26 - 00;11;53;08
Pete Salsich III
Now, obviously, when these statutes were written, we didn't know that they could be created by something that wasn't human at all. Nevertheless, the rule stands, and I don't think it's going to change. So modified registrations, I think that's the right ruling. But it's fascinating in its implications because what that means is that nobody owns the copyright in the graphic images.

00;11;54;04 - 00;12;20;06
Pete Salsich III
You know, carry that next step further. Nobody owns a copyright in content. It gets created by and I and the Copyright office is clear that giving proper s by themselves is not enough to make that human authorship. It's not as if the I the whole point of the is it's not a typewriter, it's not a pencil, it's not a tool, right?

00;12;20;19 - 00;12;46;04
Pete Salsich III
Not at least when it's used this way. It is the creator, It is generating these images, this artwork or in other cases words, whatever it's generating it, it as an AI or, you know, maybe there's a conversation on some other podcast about whether I should be persons or whether they'll get there someday. But for right now, we know they're not persons.

00;12;46;04 - 00;13;10;08
Pete Salsich III
The law doesn't recognize them and therefore there's no copyright protection of what they do. So what does that mean? Well, I think it means all of that artwork is in the public domain. Is the public domain is where things live when nobody owns copyright. And if something's in the public domain, anybody can use it for any reason. So it's free to all of us.

00;13;11;03 - 00;13;43;08
Pete Salsich III
So maybe this was set up as a test case. Maybe the author doesn't care about making money from that graphic novel, and maybe she'll make money because it's kind of a novelty. It's a pretty cool thing and she owns the order of it, so someone wouldn't be able to copy the the story order. But every bit of that artwork, somebody could use the graphics, the characters, the backgrounds, take a stills snapshot, just take away the word balloons.

00;13;43;08 - 00;14;15;03
Pete Salsich III
People could sell prints, you know, And a lot of times in the graphic novel world, sometimes there's a value and a secondary income generated by selling stills, shots and prints and artwork from frames in the graphic novel. Well, if you're the copyright owner, the whole thing that might be a revenue stream for you as well. You know, maybe in the comic book world, in the graphic novel world ownership of the characters, copyright ownership of the characters in a graphic novel is a big deal.

00;14;15;21 - 00;14;47;06
Pete Salsich III
I spent a fair amount of time in litigation in a case that we'll talk about involving that very issue in three characters that were created in a very early issue of the Spawn comic Angela Corey, Astro and Medieval Spawn. Each of those characters went on to have a life in future issues in spin off series in action figures, in appearing in animated and live action films.

00;14;47;06 - 00;15;14;09
Pete Salsich III
Right. So though the value of those characters became huge and each one of those characters was a combination of the writers, you know, who is this character? What did they say? What is their backstory? That was the writer. But then somebody drew the character, right? And there was a long standing litigation over whether those characters were owned by one party or joined to others.

00;15;14;26 - 00;15;39;16
Pete Salsich III
So each one of those characters has a value in and of itself, and the artist who did the visual creation is a big part of the ownership. Maybe somebody else has a piece too, is it happened in our case, but that artist absolutely had an ownership in that copyright. And when that character evolves into an action figure, there is no story surrounding that action figure anymore.

00;15;39;16 - 00;16;03;11
Pete Salsich III
It's just the character and people are buying that character. Well, the money has to go to the owner, the character in some way. And so if you're drawing that character, that can be a huge part of your value. Well, I don't know if they're going to be action figures made out of the characters in Czarina of the Don, or if they're those characters will come out of that story and live in some other life.

00;16;04;03 - 00;16;30;12
Pete Salsich III
But the reality is, I think someone else could say, I really like that character. Pretty cool. I'm going to have that character go live in my novel, and maybe mine is going to be a story that's much darker or it's exactly the opposite of what the original author intended. Maybe it's something horrific. Use your imagination. The point is, you can take that character that maybe is beloved in one instance and put it somewhere else.

00;16;30;19 - 00;16;57;27
Pete Salsich III
Why? Because nobody owns what that character looks like. And the author who created it really only owns, according to the Copyright Office, the words that that character said and how that character moves through the story. In this particular episode in this particular issue, which I think means that that character can go live anywhere else and anybody can do anything with it.

00;16;58;00 - 00;17;32;02
Pete Salsich III
I doubt that's the intention of the creator of this work. Now, again, I don't really know. Maybe this was all done precisely to test a I and I ownership issues, and so maybe it doesn't really matter. Maybe it's a novelty. But I think the law is clear. And so if you're out there in the world and you're saying, I want to create a graphic novel, but frankly, I don't want to pay an artist or, you know, a Penzler or colorist, a human to draw my characters in my story I'm going to use.

00;17;32;02 - 00;17;53;11
Pete Salsich III
And I well, guess what? I think the reality is you put that out on a screen. You don't own that. And anybody can take it and do anything they want. You know, we had a there's a situation it's kind of analogous about a character getting or getting away from the creator. And I point this out to talk about why this might matter to you.

00;17;53;21 - 00;18;20;08
Pete Salsich III
It's not just the economics. Right. Certainly as we just talked about, you may be giving up a lot of money if you can't control who can use your characters, but you might also be giving up a little part of your soul. You maybe you know the story of Pepe the Frog, which was started as a, you know, a little very simple, hand-drawn comic on MySpace, of all things, if you could remember that.

00;18;21;11 - 00;18;43;10
Pete Salsich III
But it got kind of this quiet cult following. And Pepe was kind of this, you know, just sort of this character that went along with a group of other people that interacted with fairly benign, you know, kind of beloved character. Well, then there was a some celebrities started adopting sad Pepe, and they'd be posting sad Pepe images in their Instagram.

00;18;43;10 - 00;19;11;19
Pete Salsich III
And that was kind of fun, right? It took on this life. So the character was starting to get away from the control of the original artist, but he was okay with that. Well, then pretty soon a version of Pepe started showing up on some really heavy alt right sites and very, you know, white supremacist, very offensive to the original creator in a lot of ways, saying things very, very dark images.

00;19;11;26 - 00;19;53;09
Pete Salsich III
And it got adopted and put in all these environments so that it was never intended to. Now, fair use law probably allowed that to happen in a way. But the point is, the original creator, the character lost all control. And there's a documentary about this that shows him standing. The the author pulls up this graph, this door in this storage unit, and he's got all of these boxes of Pepe the frog shirts and, you know, Loungewear and sweatshirts and things like that that no one would buy because the character had had become associated completely with this horrible image.

00;19;54;03 - 00;20;20;25
Pete Salsich III
And so what ended up happening is a group of lawyers on a pro-bono basis started suing the sellers of Dark Pepe merchandise for copyright infringement, and then they flooded all the fans to try to gain control of the image again. So all these fans started posting happy Pepe images. So then when you go do a Google search, happy Pepe comes up.

00;20;21;02 - 00;20;46;19
Pete Salsich III
Not, said Pepe. And he finally got some control back when there was a massive effort and only work because someone could really marshal all of that. Most of us would never have the ability to get that control back. So you might not just lose money, you might lose something more. If you use A.I. to generate your graphics for something like this or draw the pictures of what your characters look like, something to think about.

00;20;47;22 - 00;21;14;13
Pete Salsich III
And that's only one of the many A.I. intellectual property issues that we can explore over the next several episodes of the screen. On your podcast, for example, we haven't even touched on the whole process of training the AIS and how they go out into the world and gather inspiration, essentially learning tools from other copyrighted works. That's a whole issue and there's a bunch of others as well.

00;21;14;21 - 00;21;39;11
Pete Salsich III
So we'll spend some time over the next couple of weeks talking about in detail about more A.I. and intellectual property issues, because this isn't going away and it's pretty cool stuff. So I hope you enjoy today's episodes. If you like this, please hit that like button down below, Hit the subscribe button so you'll get updated information about new episodes of the screen on your podcast and you can always find us at TheScreenLawyer.com 

00;21;40;01 - 00;22;07;28
Pete Salsich III
Take care. You've been listening to The Screen Lawyer podcast with your host Pete Salsich, The Screen Lawyer. For more information or to stay connected, find us on social at The Screen Lawyer or check us out at TheScreenLawyer.com