Polar Bears and Piracy: How AI is Challenging Traditional Copyright with Dan Miller

The intersection of copyright law and artificial intelligence represents one of the most challenging legal frontiers of our digital era. In this thought-provoking conversation, Dr. C. Daniel Miller (The Copyright Detective) unpacks the complex world of intellectual property rights when machines can generate content indistinguishable from human creation.

From his unique background spanning higher education, NASA projects, and over a decade in copyright clearance, Dr. Miller offers a balanced perspective on AI as both an innovative tool and a potential legal minefield. He explains that while copyright fundamentally exists to encourage creativity by granting creators exclusive rights, AI systems have disrupted this framework by training on millions of works without permission or compensation.

Perhaps most surprising is the current legal status of AI-generated content: images created solely through prompts remain uncopyrightable according to the US Copyright Office. Neither the user nor the AI can claim ownership, effectively placing such creations in the public domain. Meanwhile, major lawsuits loom large over the industry, with Disney and Universal Studios taking on Midjourney for creating near-perfect replicas of iconic characters, and potential damages in other cases potentially reaching billions.

For creators concerned about protecting their work, Dr. Miller emphasizes the critical importance of copyright registration within 90 days of publication. Without registration, creators cannot sue for infringement and lose access to statutory damages that make legal action financially viable. He also warns about "AI hallucinations," noting studies showing up to 79% of content from newer AI platforms may contain factual errors, reinforcing his mantra: "Don't trust and always verify."

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Chapters

• 0:00 Introduction to the Copyright Detective
• 2:20 Basics of Copyright Law
• 4:33 Fair Use and Derivative Works
• 9:00 AI Copyright Infringement Issues
• 13:36 Legal Consequences and Lawsuits
• 19:25 Copyright Registration Process
• 21:29 AI Hallucinations and Verification
• 23:42 Using AI as a Practical Tool

Transcript

Erin Manning: 0:02

Welcome to the Dead Pixels Society podcast, the photo imaging industry's leading news source. Here's your host, Gary Pageau. The Dead Pixels Society podcast is brought to you by Mediaclip, Advertek Printing, and Independent Photo Imagers.

Gary Pageau: 0:18

Hello again, and welcome to the Dead Pixels Society podcast. I'm your host, Gary Pageau, and today we're joined by Dr C Daniel Miller, and he's the Copyright Detective. Hi Dan, how are you today?

Dan Miller: 0:30

Good morning, I'm great, thank you.

Gary Pageau: 0:33

So, Dan, tell me about your journey into becoming the Copyright Detective. You've got a long history of being involved in copyright. What made you decide that this is the thing you needed to focus on?

Dan Miller: 0:45

Well, I've kind of changed focus a lot of times during my career. I spent a lot of time in higher education, spent a lot of time on funded projects. I actually did a stint as the director of the NASA Classroom of the Future when the internet first came out. So I've always been interested in technology, if you will, and I actually love change. So to me, it's not a freight train that's going to run over you. It's a freight train to jump on board and see where it takes you.

Dan Miller: 1:11

You may remember the housing collapse back in 2008. One of my stints in I was working with architects designing internet technologies for buildings and facilities and the market crashed. So my wife had been involved in copyright and copyright clearances and all of those kind of things. So I got involved with her when that happened and sort of redirected my focus. So I've been doing copyright clearance projects since 2010, been doing presentations on copyright and the basics of copyright and all that. More recently, I was asked to do a presentation on copyright and artificial intelligence, so that got me off on the tangent that I'm currently on is trying to figure out AI and what the implications are if you use AI, and there's some serious implications out there.

Gary Pageau: 2:04

So, before we get into the implications of AI, let's talk about some of the basics of copyright, because there's still a lot of misunderstanding, especially in the consumer world not necessarily my audience, who are, you know, in the industry and really kind of understand copyright but really nothing's changed despite the change in technology.

Dan Miller: 2:25

No, basically copyright law was designed from the beginning of foundations of the country to encourage creativity and the way that the copyright law has encouraged that is to give the owner of the creative works a monopoly for a period of time, and now it's the life of the author plus 70 years, so you know your heirs of your estate actually can afford the value of copyright protection. It's trying to increase that Now. Ai, of course, is changing the dynamics of all that, but it's all very unsettled. It's all so new. You know some of the rights the rights to reproduce your work, the right to make a derivative of it. You know that's where some of the challenges are coming in now when AI is getting involved in that.

Gary Pageau: 3:07

So yeah, let's talk a little bit about the derivative work piece, because that comes up a lot. Yes, where you would have. Okay. Let's say, for example, I'm running a camera store right, or a photo lab retail, and somebody walks in and they want to put someone's school picture and they've added some text to the picture, they've modified it slightly or they prop it or whatever, and they want to put that on a t-shirt or a mug. That's a copyright violation, right?

Dan Miller: 3:35

Yeah, because they're making a derivative from the original. It's two levels of copyright infringement. First of all, they didn't have the right to do anything with the photograph that someone else took that belongs to the studio. Or if you or I took the picture, we actually own the rights. So possession of the photograph does not give you any rights, right? And then I do a double whammy if I modify that. So let's say, I take a picture, you send me your picture, I paint on a beard and give you glasses and change the color of your shirt. I made a derivative of that photograph. So that's another level of infringement, if you will, because only the copyright owner has a right to make a derivative of the original.

Gary Pageau: 4:15

But what about? People are saying I'm doing commentary or something like that. That's a free speech application. How does that come into play?

Dan Miller: 4:26

Well, there are some exceptions to fair use. That's really what we're talking about, and doing a critique is one of the things in the language of the law that allows you to use a copyrighted work, if you will, to make a critique, news reporting, scholarly works and all those kind of things. That's an exception, really, and fair use is not a right. It's actually a legal defense when somebody sues you for copyright infringement.

Gary Pageau: 4:51

Right. So the example I use would not be considered fair use. Even though I was saying I did something to the picture. It really comes under the derivative works idea as opposed to the fair use idea.

Dan Miller: 5:04

Well, fair use is so confusing that I hate to generalize the statement. Like I say, it's decided in the courts, but there are limits to fair use and right now, that's the defense that AI companies are actually using for all the stuff they have copied without compensation, without permission. So they're using a fair use defense. Unfortunately, it's going to be a decade or longer before these things work their way through the courts and ultimately, my prediction is the Supreme Court will make decisions and there's going to be decisions both ways, because there's so many cases. There are 40 cases right now on the books for copyright infringement, so hopefully I'll live long enough to see a few of those play out.

Gary Pageau: 5:50

So let's talk a little bit about that, about where that infringement occurs. So, in a generative AI application like ChatGPT or something, I would say I'm typing into a prompt polar bear surfing with a bottle of wine in his hand and I type that into a prompt and it creates it, and what it's doing is it's got a language model that it's been trained on on the back end and those images had to come from somewhere, right? And is that where the infringement possibly could happen?

Dan Miller: 6:26

Well, let me back up. It's real clear what the US Copyright Office's position is right now, with all its decisions, and that's, if you start with a prompt, and that's all the human involvement that there is in generating an image. That image is not copyrightable, right, and AI cannot claim a copyright on it, because AI is a machine, it's not a human being, right? So it's just out there. So, if you create the image of the polar bear and you publish it, so can I, because you didn't own it, the machine didn't own it. It's just in the public domain, right. So that's the first issue. They've taken a very hard line. Now, there's only been one exception. I don't know if we'll have time to dig into it, but there has been an image that was created only using AI platforms. It's by the Invoked platform, if you will, but that's an exception. That's out there.

Dan Miller: 7:19

Now the infringement part yeah, ai trained on images that it got everywhere. Now, can I actually find the polar bear that someone produced that's showing up in your image? That's difficult, because there are probably you know, there are thousands of pictures of polar bears that AI has trained on. So the way I like to think of it is all that stuff has been run through the wood chipper and there are many pieces out there and AI has labeled all of those and there's a code for polar bear, big polar bear, small polar bear, you know whatever walking, running, standing, swimming. So finding the infringement piece is very difficult unless you can actually find an exact image. Now perplexity actually is doing something. The initials are RAG and they are actually going out in real time when you do a query and they will pull an image off of a website. So that's one place you really have to be careful and in my view, they clearly have created, have done copyright infringement, so I can go ahead and find that image Now they have clearly infringed.

Gary Pageau: 8:20

It's not generating an image, it's just sourcing it from somewhere else and copying they copied it, yeah, and fed.

Dan Miller: 8:25

There's not generating an image, it's just sourcing it from somewhere else and copying. They copied it and fed it back to you.

Gary Pageau: 8:26

That's infringement clear and simple. In the part of generative AI where you have the large language model of a polar bear, we'll stick with the polar bear example. Why are people upset about that? Let's flip it on its ear. Let's say you've been shooting stock photos of polar bears for years. Why do you even care if a model is being trained on your images?

Dan Miller: 8:55

Well, you don't know what piece of your work is actually showing up. That's part of the problem. Again, if you think about the quantity of stuff that's out there, anthropic has been in the courts. They actually got over 7 million books, for example, from pirate sources, and they're going to court for piracy now for that. So again, the problem from the creator's point of view is how do I know that that piece that I see and what you generated is actually coming from me? That's the difficulty Right Now. If somehow the generation of that polar bear image infringes on my ability to make a living with that. That's the basis of a lot of these lawsuits and that's one of the things that the plaintiff is going to have to prove is did that somehow impact my livelihood?

Gary Pageau: 9:44

But is copyright necessarily tied to livelihood? It?

Dan Miller: 9:49

doesn't have to be Right. That's what I'm saying. Yeah, you can use a marketing all day long If you're not trying to copyright whatever you produce. What's the issue? It's more a matter of you know you're taking work away from me, so that would be how I'd approach it.

Gary Pageau: 10:04

But the way the law is written it's not necessarily to protect the financial interests. I mean it is, I guess, guess from the way you explained it earlier. But I guess what I'm saying is that is the end goal of someone who's upset about their polar bear images being used in a language model that they're not getting, that there could have been a time where their polar bear could have been used in that picture. In that composition.

Dan Miller: 10:29

Yeah, the uh, the thing about loss of income is is one of the fair use factors. So this goes back to the whole fair use argument. What right does an AI platform have to scan anybody's work that's out there without compensation and without acknowledgement? Either one, so? And again, part of it is the lack of acknowledgement. So that's plagiarism. I take your stuff, I use it, I don't get your permission and I don't give you credit, you know. The last part is plagiarism, and that's what I see coming down the pike is this whole thing about AI disclosure. The copyright office requires that if you're claiming a copyright, if you're trying to register, and now Amazon KDP has a requirement for you to disclose AI-generated content, and if you don't do that and they discover it later, they can pull your book off the shelf. Okay, so you know that has some teeth in it in terms of requiring the disclosure. And again, if you don't disclose, you're implying that you own it, you know. So that's being dishonest. So that gets to the heart of it on another plane, if you will.

Gary Pageau: 11:32

Okay, so let's talk a little bit about enforcement actions. You said there's 40 lawsuits give or take happening at any given time, it seems like on this, yeah. So what is the point of a lawsuit in the sense that do you think you're going to be remunerated? Do you just want to stop the behavior or get acknowledgement? What's the objective of some of the folks with the lawsuits? All of the above?

Dan Miller: 11:57

But copyright law has some serious teeth. So the case against Anthropic, where they pirated 7 million books if the damages are found at the maximum level, it's $150,000 per infringement, plus court cases if you do it properly. So if you take seven million times 150 000, it's a trillion dollars. That's with a t. So that that's some serious change. I don't care who you are. Uh, now the judge has already said well, it can't be that. That's ridiculous. But the conversation is left open to the billions of dollars in fines for that copyright infringement. If that's proven.

Dan Miller: 12:38

Disney and Universal now has sued Midjourney. Midjourney is one of the big producers of images out there and if you look at the court filing they have 199 instances. They have a Homer Simpson and then you see Midjourney's Homer Simpson. You can't tell the difference. There's C-3PO from Star Wars in there. One of them has longer legs than the other one Beside that. You can't tell the difference. So, midjourney, they're up against some heavy hitters with Disney and Universal Studios, and it's the first time a studio has sued an AI platform. That just happened in June. The first time a studio had sued an AI platform. That just happened in June. So you know there is some serious reproduction. If you do win a suit of copyright infringement and an individual can bring a suit like that too Now you have to have deep pockets to keep going after these big boys that are, you know, the AI platforms, because they have some serious backers like Microsoft as well, sure.

Gary Pageau: 13:30

So let's go to kind of the liability on the output side. Let's say, for example, I go to MidJourney, I get a C3PO, I put it on a coffee mug and I start selling it in my store. What's my liability there?

Dan Miller: 13:49

I'm not an attorney. I can't really get into that.

Gary Pageau: 13:52

Sounds to me like there'd be a liability there, though.

Dan Miller: 13:55

But if you look at the terms and conditions of a lot of these AI platforms, they say you are responsible for how you use the output. Okay, they just put the monkey on your back Right. So you know if you use AI and that's part of what I try to do is I tell people you know these are the dangers and here are the advantages and here are the disadvantages of using AI, and you need to know you may be opening yourself up for liability as well.

Gary Pageau: 14:23

Yeah, because that's where I think you know the thing is. People think, oh, it's on the Internet, I can use it and you know I can do something crazy with it and have fun and maybe you can. But if you start, you know, making products out of it, then that's a challenge, right.

Dan Miller: 14:39

Yeah, when you get caught, that's when the challenge is. A lot of people get away with it for years or forever, but I'm very conservative. I'd rather ask permission than spend one day in court trying to defend myself when it's indefensible.

Gary Pageau: 14:55

Yeah. So I think that's one of the things I think people struggle with is just, in general, is you know, especially in the you know volume, the you know volume photography, the school photography space that I'm involved in, is that you know what's getting with me? I think for a second, just people you know screenshotting, uh, you know, consumers are screenshotting the pictures that are on their screen and then they're, then they're using their, they're violating the copyright. Then then the they try and put watermarks on the picture, and then there's all these little like facebook groups that are removing watermarks and it just seems like, and then it's almost like well, why should I spend time even chasing that for a $5 picture? Right, it's a challenge.

Dan Miller: 15:37

Yeah, and part of the problem with AI there are no guardrails on AI yet Right.

Gary Pageau: 15:42

But even then, for even just basic copyright infringement right, it's still. It's because of digital technology is still a challenge.

Dan Miller: 15:50

Oh, it's easy. It's easy to do. It's too easy to do. That's part of the problem. Yeah, I see it all the time, even on LinkedIn. People will respond back and they'll put a slapping image up there, or they'll put a news article in their LinkedIn post, for example, and they don't realize they just created copyright infringement.

Gary Pageau: 16:08

So on the creator side, what's been happening with like copyright registration, and how does that protect you?

Dan Miller: 16:16

Okay. So you basically have a 90-day window that you need to apply for. You need to apply for a registration because you cannot bring a lawsuit until you actually get your certificate of registration or actually apply for the registration. Then, once you get your certificate, you can bring a lawsuit. So if you do it within that 90 days, that's when you can get statutory damages and that's where the maximum of $150,000 per infringement, plus reimbursement of your attorney's fees if you win the lawsuit. So that's a big difference. So you have to go through the application process to be able to actually take advantage of the protections that you have. Your work is protected from the moment you put it in a tangible form, but you can't do anything about it until you've actually filed a registration. Now the procedure is messy. If you go into a copyright, if you try to register it on ECO, on the US Copyright Office, it looks like you're in the Pac-Man generation from the graphics and everything.

Dan Miller: 17:19

They're changing it and hopefully it's going to be a lot better, but I don't know when it's going to be coming out and the the ai piece of that is very confusing as well. You know they want a simple explanation. I used ai to generate an image. They want some simple language and then you can add supplements that you want to to actually explain it.

Dan Miller: 17:40

So when when I did that powerpoint presentations on copyright and age of artificial intelligence and I actually filed an application to register that and I actually spent a couple of hours with an examiner from the US Copyright Office which astounded me that they would do that and basically he was trying to pull out of me how I used AI I didn't have the language at that time to explain it simply. I do AI. I didn't have the language at that time to explain it simply I do now. So essentially my PowerPoint presentation is copyrighted, along with the verbiage that I used in the presentation. So it can be a kettle of worms as you go through the process to actually give yourself as much protection as you can by registering the work.

Gary Pageau: 18:19

But you can do for images. I think you can do bulk registration yes, absolutely, which. I think you can do bulk registration yes, absolutely, which I think is important. It's a whole lot cheaper.

Dan Miller: 18:29

I did a single image of $65, and I don't know what. I don't know what you can do $10 or $100. I don't know what the quantity is, but you can do large batches, even things like blogs. You can also register a group of those at one time. So that's the way to go is at least give yourself something that you can prove that you own it. That's another reason for doing the copyright registration is you have legal documentation that you own that copyright.

Gary Pageau: 18:57

Well, yeah, that is the challenge, because I think someone can be found to have violated your copyright, but they can't collect damages if you haven't actually registered it. You can collect damages, but they can't collect damages if you haven't actually registered it.

Dan Miller: 19:07

You can collect damages, but they're minimal. You have to prove that you know I lost this much income because you did that. Well, what's that going to be? You know? 50 bucks, 100 bucks. It's going to cost you more than that just to file the lawsuit, right?

Gary Pageau: 19:19

Where do you think this is going in the near term in terms of how people will be using it? Do you think there's going to be like disclaimers on the front end of these platforms to coach people? Or are they just taking the idea that, well, you know, we're here to generate revenue and it's the Wild West and we'll let it go and we'll let the courts settle it out?

Dan Miller: 19:49

I'm afraid it's the Wild West right now. There are platforms out there that actually license the content that they use to train on Absolutely. So I think trust is the big factor that's happening and one of the problems we have right now with AI. It's a thing called AI hallucinations. They will give you an output that looks feasible and everything else, but it's garbage. They make stuff up. So now, anytime I do an AI prompt in there, I'll get an answer back and I'll ask it what's its confidence level and what it output and it'll actually break it down. Well, I'm 73% confident that blah, blah, blah. But I'm only 40% confident in something else and a key to this whole thing is the whole. Reagan said it trust but verify. And now I say don't trust and always verify anything you get out of AI.

Dan Miller: 20:40

So I look at the sources and I have one example. I was trying to find the hourly rate of a CPA and I put it in and it gave me an answer. And I looked up one of them and the best way I describe this it was a chat group from Bubba's Bait Shop in Biloxi Mississippi. So I don't want to make any decisions based on a chat group in Biloxi Mississippi from a bait shop. So check the sources of all the stuff that you get out.

Dan Miller: 21:01

Ai hallucinations are getting worse, not better. There's a study I found that 30% of the big major platforms, 30% of the output, is hallucination, and in new AI platforms it's as high as 79%. So if you think about that, 79% of what they tell you is wrong. So you know, be very careful if you're using AI content. Now it's a tool. I use it every day. I use it to find I'm trying to get copyright, permission or something. I'm trying to find somebody's contact information and I'll go in and I'll use two or three platforms starting with Google a lot of times and I'll compare the answer of one platform versus another platform.

Gary Pageau: 21:40

Sure, another platform, sure From an imaging standpoint.

Dan Miller: 21:52

Is there a resource for AI engines that are using licensed content? Again, I would put in an AI prompt and ask for it.

Gary Pageau: 21:55

That's true. Why didn't I just ask an AI for that right?

Dan Miller: 21:58

It would be 79%.

Gary Pageau: 21:59

Wrong though.

Dan Miller: 22:01

Yeah, well, that's why I use several of them. I use perplexity, I use chat, I use the Gemini, I use a Claude. So I'll ask the same question to all four of those and I'll ask them what's their confidence in each one, and then I'll sort and then I'll go to the sources that they cite to try and find the right answer. So I don't again, don't trust and always verify, don't again don't trust and always verify.

Gary Pageau: 22:24

It almost seems like that's. It's almost more work, I think, than a straight search.

Dan Miller: 22:30

If you think about the old Google search, I might get 10 million hits. Well, by the time I get down to page three on those, I'm out, forget it. But at least with AI, they're going to take those 10 million and they're going to boil them down into 20. Right, so if I'm using four platforms, I might have 80 different sources that I'm looking at instead of 10 billion. It saves work in that regard, but I get a lot of very useful information. I use it to brainstorm ideas. If I get stuck on something, I'll run something by it and get a reaction from it, and a lot of times it'll jar something loose in my head and let me move forward. For that. So it is useful. It's a tool. Tools can be abused, though. It's like a hammer you can build a house with a hammer or you can tear a house down.

Gary Pageau: 23:14

So in that sense, we're all carpenters trying to learn how to use AI as a tool, you know one of the things that I think is kind of causing our consternation is, of course, is the way it's being used. But you know, people in the photo world, people have been manipulating images for years, I mean for hundreds of years. Actually go back, you know, to either staging photos or but dodging and burning and cropping and negatives. And then when Photoshop came, that was a digital way to do it and there was people who are gonna say that, you know, photography was over because everything could be done in the computer. And then, now that AI is here, they're saying it again and, like you said, it's just a tool. It's not going to replace like real people it's exciting world.

Gary Pageau: 23:57

Yeah, stay tuned so people wanted to get more information about what you do and learn more about you know kind of the copyright advice that you have. Where did they go?

Dan Miller: 24:13

It's easy to remember Thecopyrightdetectivecom.

Gary Pageau: 24:18

Awesome and you're available for consulting and for people to just learn more about what you've researched.

Dan Miller: 24:25

And there's actually a page on there. The workshops page has presentations that I've done, other podcasts. It has recordings of some of those as well. So if they want to find out and I'm doing blogs, I can't, you know, you can't keep up with all the changes in AI, so I started doing blogs. So that's an easy way to find out what I'm up to and just hit the contact us and pop me a note. I'll reply back Awesome.

Gary Pageau: 24:49

Well, thank you much, dan, Great to talk to you about AI. I'm sure we're going to have this conversation again in the future when all this stuff continues to change. So thank you so much for your time.

Dan Miller: 24:59

You're quite welcome, enjoyed it, thank you.

Erin Manning: 25:01

Thank you for listening to the Dead Pixel Society podcast. Read more great stories and sign up for the newsletter at wwwthedeadpixelssocietycom.