In our modern era, the arts have found a new companion: Artificial Intelligence (AI). This powerful technology has begun to alter the way we create, consume, and share the arts. The entertainment industry, in particular, has embraced AI-generated works. However, this burgeoning field has brought with it a complex web of legal challenges, largely due to the inability of existing intellectual property laws to fully address the unique questions raised by AI-generated works. This blog post aims to explore these legal challenges and discrepancies, urging lawmakers to adapt intellectual property laws for the AI-driven future of entertainment.
AI’s Growing Role in the Entertainment Industry
As AI proliferates, it has resulted in new forms of artistic expression. Media creation now finds itself increasingly entwined with AI-powered technologies. For instance, AI applications like Flow Machines assist songwriters in composing music and creating melodies, with their final products even finding recognition on music charts and Spotify playlists.1,2 In the film industry, AI is actively used to enhance computer-generated imagery (CGI), refining facial expressions and movements, and superimposing them onto different characters or even using deceased actors’ past facial performances to complete movies.3
In 2016, Twentieth Century Fox collaborated with IBM Watson to create a trailer for its film Morgan. Such applications of AI in the filmmaking and promotion process are likely to gain popularity among film studios in the coming years.4 Today, deep learning models like DALL-E have been used to create pictures and cartoon characters based on text prompts, while models like GPT-3 are predicted to play instrumental roles in the development of storylines and dialogues.5 Ultimately, AI has proven to be a valuable addition to the video game industry.
The Legal Quagmire: AI-Generated Works and Intellectual Property Laws
Despite AI’s increasing role in the entertainment industry, intellectual property laws have struggled to keep pace with the rapid surge of AI-generated works.6 This disconnect could negatively impact the free flow of creativity and innovation in the digital arts landscape. AI-generated works raise important questions concerning copyright authorship and ownership. The Copyright Law of the United States protects original works of authorship.7 However, the US Copyright Office’s Compendium Section 306 limits such protection to works “created by a human being.”8 Due to these limitations, the Copyright Office is unlikely to register a claim where AI is listed as an author or co-author, as a human being was not the direct creator.9
In 2022, artist Kris Kashtanova received a registered copyright on her graphic novel Zarya of the Dawn.10 To create the artwork, Kashtanova used Midjourney, an AI program that creates images using textual descriptions, and listed it on the cover page of the work.11 However, the copyright registration for the graphic novel does not list Midjourney as an author.12 The U.S. Copyright Office responded to this by stating that the office would not knowingly grant copyright registration to a work that claims to be solely created by an AI machine.13
Similarly, in Thaler v. Vidal, the court refused to list AI software as an inventor on a patent application.14 Scholars have criticized such an anthropocentric approach to IP protection, citing concerns that if AI programmers cannot recuperate their labor through the financial incentives provided by IP protection, they may be discouraged from utilizing their knowledge to develop AI programs, thereby stifling innovation.15 In fact, some scholars claim that the process of feeding data into AI systems would qualify as creative input by a human author.16
However, in the absence of any concrete directions from Congress regarding legal standards surrounding AI-generated work products, media companies planning to use AI to assist in their creative process could render themselves vulnerable to copyright infringement claims.17 For instance, if an AI system generates an image that incorporates elements from a copyrighted work, it could be considered a derivative work, which is protected under copyright law.18 Derivative works are created when copyrighted works are modified, translated, or adapted in a way that creates a new work.19 Under the Copyright Act, only the original copyright holder has the exclusive right to create or authorize the creation of derivative works. 20, 21
The Fair Use Doctrine and AI-Generated Works
The fair use doctrine is a defense to copyright infringement, allowing copyrighted works to be used under specific conditions without the need for permission from the original author. However, the application of the fair use doctrine to AI-generated works has garnered mixed responses, as the copyrighted work is not being used for its expressive content but for its data.22 Authors of copyrighted works argue that their moral rights, such as the right of attribution, are infringed upon by AI-generated works.23 Consequently, they increasingly prohibit the use of their names as input prompts due to concerns that AI-generated artwork might usurp human-created works’ position in the industry.24
The Need for Action
As AI continues to influence the entertainment industry, countries like New Zealand have acknowledged AI as authors in creative works.25 Japan and the European Union have also invested resources in determining the best approach to intellectual property laws and AI-generated works.26 In the United States, Congress has the responsibility to promote the progress of science and the arts under Article 1 §8, cl.1 of the Constitution.27 With AI’s growing prevalence in the entertainment industry, Congress must respond to the demand for statutory guidance and provide a revised framework of intellectual property laws that addresses the loopholes in the law and balances the rights and interests of all parties involved.
Critics have questioned the efficacy of intellectual property laws and their potential obsolescence in this rapidly evolving technological era. In the past, intellectual property laws have been revised to accommodate technological advancements. Presently, the boundless scope of AI-powered technology necessitates that lawmakers effectively respond to and alleviate the deficiencies in intellectual property laws. The laws and policies established by Congress in the coming years will be pivotal in determining the utility of intellectual property laws in regulating the industry while simultaneously promoting innovation.
1 Siddhika Prajapati, “6 Applications of AI in Entertainment Industry,” Analytic Steps, January 22, 2023, https://www.analyticssteps.com/blogs/6-applications-ai-entertainment-industry.
2 Peter H. Diamandis, “AI is about to Completely Change the Face of Entertainment,” Singularity Hub, January 24, 2023; Siddhika Prajapati, “6 Applications of AI in Entertainment Industry,” Analytic Steps, January 25, 2023, https://www.analyticssteps.com/blogs/6-applications-ai-entertainment-industry.
3 Preeti Singh, “The future of Entertainment with Artificial Intelligence,” Medium, January 22, 2023, https://medium.com/technology-hits/the-future-of-entertainment-with-artificial-intelligence-75483644e189; Siddhika Prajapati, “6 Applications of AI in Entertainment Industry,” Analytic Steps, January 25, 2023, https://www.analyticssteps.com/blogs/6-applications-ai-entertainment-industry.
4 Peter H. Diamandis, “AI is about to Completely Change the Face of Entertainment,” Singularity Hub, January 24, 2023, https://singularityhub.com/2019/05/03/ai-is-about-to-completely-change-the-face-of-entertainment/.
6 Tanner Co, “The Intellectual Property Imp lications of AI-Generated Images,” NYU Journal of Intellectual Property & Entertainment Law (blog), January 22, 2023, https://jipel.law.nyu.edu/the-intellectual-property-implications-of-ai-generated-images/.
7 17 U.S.C. §102(a).
8 Compendium’s Human Authorship Requirement. 12 Under Compendium: Copyrightable Authorship: What Can Be Registered, Chapter 306.
9 Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).
10 Kyle Barr, “Artist Claims First U.S. Copyright for Graphic Novel Featuring AI Art,” Gizmodo, January 23, 2023, https://gizmodo.com/ai-art-shutterstock-getty-fur-infinity-1849574917; Tanner Co, “The Intellectual Property Implications of AI-Generated Images,” NYU Journal of Intellectual Property & Entertainment Law (blog), January 22, 2023, https://jipel.law.nyu.edu/the-intellectual-property-implications-of-ai-generated-images/.
14 Thaler v. Vidal, Appeal No. 2021-2347 (Fed. Cir. Aug. 5, 2022); Tanner Co, “The Intellectual Property Implications of AI-Generated Images,” NYU Journal of Intellectual Property & Entertainment Law (blog), January 22, 2023, https://jipel.law.nyu.edu/the-intellectual-property-implications-of-ai-generated-images/.
15 Kalin Hristov, “Artificial Intelligence and the Copyright Survey,” Journal of Science Policy & Governance 16, no. 1 (2020): 2.
16 Lights, Camera, AI: Artificial Intelligence Authorship and Copyright Ownership in the Entertainment Industry of Tomorrow (April 2018) https://legaltechcenter.net/files/sites/159/2018/04/1.-Lights-Camera-AI-Artificial-Intelligence-and-Copyright-Ownership-in-the-Entertainment-Industry-of-Tomorrow.pdf.
18 Supra n. 6.
20 Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991).
21 Feist Publications, Inc., v. Rural Telephone Service Co., 499 U.S. 340 (1991); 17 U.S.C. §103.
22 17 U.S.C. §101.
23 17 U.S.C. §106(2); Jay T. Westermeier, “Understanding the Importance of Derivative Works,” Finnegan, February 8, 2023, https://www.finnegan.com/en/insights/articles/understanding-the-importance-of-derivative-works.html.
24 Isiah Poritz, “Generative AI, Andy Warhol ‘Fair Use’ Lead 2023 Copyright Issues,” Bloomberg Law, January 22, 2023, https://news.bloomberglaw.com/ip-law/generative-ai-andy-warhol-fair-use-lead-2023-copyright-issues.
25 Kevin Kelley, “Picture Limitless Creativity at Your Fingertips,” Wired, January 22, 2023, https://www.wired.com/story/picture-limitless-creativity-ai-image-generators/.
26 Supra n. 15.