13 February 2023

Don't Get Sued For A Sentence: Navigating The Evolving Intellectual Property Landscape With ChatGPT

Volpe Koenig


Volpe Koenig provides worldwide client counseling on patents, trademarks, copyrights, trade secrets, technology transfers, due diligence, licensing and enforcement of intellectual property rights. The firm’s attorneys, agents and technical advisors have expertise in a wide range of industries and serve a diverse roster of U.S. and multinational clients.
ChatGPT has exploded in the media recently with news stories ranging from educators' concerns over students using ChatGPT to cheat on assessments, to ChatGPT becoming an existential threat...
United States Intellectual Property
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ChatGPT has exploded in the media recently with news stories ranging from educators' concerns over students using ChatGPT to cheat on assessments, to ChatGPT becoming an existential threat to Google's online advertising dominance, as well as ChatGPT potentially replacing professionals such as software coders and writers, and even the threat that an artificial intelligence (AI) could take and pass exams for doctors and lawyers.

For those not yet exposed to it, ChatGPT is an online “chat bot” from OpenAI, powered by artificial intelligence (AI), that can engage in a variety of tasks including conversations with users, drafting short-stories and essays, as well as implementing different software programs. Platform visitors can request that the program's response include specific topics, celebrities, brands, literary characters, and song lyrics in their chat requests. As anyone can imagine, ChatGPT's breadth of knowledge and ability to integrate different ideas and content creates potential intellectual property problems that we have only begun to appreciate.

ChatGPT users are also able to utilize the service to connect with familiar characters, plots, and songs, all without the familiar intellectual property notices. On ChatGPT, users can ask the system to draft stories based on existing copyrighted works, including, Harry Potter, The Rocky  movie series, and The Hunger Games. ChatGPT users can instruct the program to produce content with specific characters from pop culture, set existing stories in new locations,  and add alternative endings. This feature, while certainly entertaining for the user and those who the user shares the output with, blurs the line between “fair use” and the creation of unlicensed, derivative works.

Similarly, some software developers allege that systems such as ChatGPT reproduce copyrighted materials for public consumption which bypasses the proprietor. As such, ChatGPT threatens the copyright holder's ability to publicly distribute their works and gain lucrative licensing deals.  This creates new challenges for intellectual property owners to limit the ability of unlicensed third parties to create and propagate derivative works.

A review of OpenAI's website terms and conditions are extremely limited and provide little guidance for users who want to own the ChatGPT content generated from their questions.  Of course, one option was to see what ChatGPT “thought.”  When asked who owns outputs from the system, ChatGPT indicated that its creations are owned by OpenAI, which could pose a problem for users who want to use or distribute the works produced with the platform, as they would need to obtain permission from OpenAI first.

The program provided similar responses when asked how users can know if the system incorporates copyrighted materials. The platform explained that the system does not have access to copyrighted materials because OpenAI has implemented a number of measures to avoid copyrighted material. For example, they claim to have implemented a policy of only using content that is either in the public domain or has been licensed for use by the company.  Given the scarcity of background information provided by OpenAI, it is difficult to judge the accuracy of the claim.  However, it is hard to believe that a major rights holder, such as Warner Brothers has licensed the Harry Potter works to OpenAI.

Additionally, ChatGPT claims that OpenAI has implemented a system to automatically detect and remove any copyrighted content that may be present in the output.  Again, it is difficult to understand how such monitoring software could be used without accessing the original source material.  ChatGPT recommends that, if a user is concerned about the possibility of the output containing copyrighted or otherwise licensed material, the user should consult with legal counsel to determine whether the platform may have violated applicable laws, remarkably leaving the ability to report potential copyright infringement directly to OpenAI severely limited.

Despite these measures, intellectual property owners should be aware of how the platform could impact their portfolios. For example, in the entertainment licensing space, ChatGPT's ability to compose songs, scripts, and other artistic works, has the potential to remove the need to license from human artists. On a similar note, plaintiffs in a recent litigation in California against OpenAI and associated companies, claim that the organizations misused licenses and misled licensors on how they intended to use the licensed materials.  Currently, copyrighted software is at the greatest risk for misuse as the ChatGPT language model does not yet have the capability to construct images or videos.  However,  other AI providers do have that capability.  One such provider is Stability AI which offers an AI-based system for generating images from text inputs.  In a lawsuit filed earlier this month, Getty Images, which operates a large commercial website contains millions of stock images for use licenses, sued Stability AI for copyright infringement. Getty Images alleges, among other things, that Stability AI had copied millions of its images without  licenses to train Stable Diffusion to generate images more accurately.

Additionally, while ChatGPT informs users that its productions are owned by OpenAI, courts are reluctant to recognize AI-generated material as copyrightable without substantial human input. This is not an unreasonable decision by the courts given that the span of copyright protection is measured by the length of a “human” life.

ChatGPT certainly appears to be an interesting and unique tool that many users are trying out. However, while OpenAI has taken steps to mitigate potential issues, it is important for users of ChatGPT and intellectual property holders to be aware of the potential intellectual property risks and take steps to protect themselves and their works. The current relationship between intellectual property and AI technology, such as ChatGPT, is at a crossroads that will require oversight and input from intellectual property holders and lawmakers to protect existing and created intellectual property rights.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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