The future is now. Generative artificial intelligence ("AI") can be used to generate new content, including text, images, animation, video, software code and music. Although AI itself is not new, it has come into sharp focus in recent months, accelerated by the availability and widespread adoption of user-friendly programs such as ChatGPT1, DALL-E, Stable Diffusion/Dream Studio, Midjourney, Jasper and CopyAI.
There are numerous content-related applications for AI among media and entertainment companies, depending on the type of company (e.g., publisher, video game company, creative agency, studio/production company) and the specific use cases. Potential applications include generating ideas and content, fact-checking, editing text, moderating misinformation and content targeting and ranking. Already, to name a few of the use cases among media and entertainment companies, we have seen publishers such as CNET using AI to assist in the writing of certain content2 and BuzzFeed embracing AI to enhance and personalize certain types of content offerings, video game creators such as Naughty Dog using AI to create the environment for the highly popular "The Last of Us" video game, creative agencies using AI for different content creation, and entertainment companies adopting AI technologies to augment visual effects, preserve and colorize film, localize content, alter actors' facial expressions3 , age and de-age actors' faces4, and generate synthetic human voices. This article will focus on content (not code) generation applications and key U.S. legal considerations bearing upon them.
The legal landscape surrounding the use of AI for content applications is uncertain and rapidly evolving; some have likened the current stage of AI to the early days of Napster.5 The use of AI tools involves legal and reputational risks that clients (and media and entertainment companies in particular) must carefully manage. We address below some of the legal and ethical considerations associated with the creation of so-called "synthetic media."
- Intellectual Property and Confidentiality:
- Copyright Infringement: Can AI-generated content ("outputs") be considered a derivative work or implicate the right of reproduction?6 Is it infringement or inspiration? Providers of AI tools use data-scraping to train their AI models ("inputs").7 To the extent that there is copyright infringement or that such data-scraping otherwise constitutes copyright infringement or a Digital Millennium Copyright Act violation due to the removal of copyright management information, are there arguments that such uses are permitted under the fair use doctrine or an implied license?8 With respect to the fair use question, are AI outputs sufficiently transformative to be eligible for a fair use defense?9 A few closely watched lawsuits are expected to provide some clarity on these issues.10 Who is liable when the AI's output is deemed to infringe someone else's copyright? If an AI tool provider is found to have infringed third-party copyrights, could a media company using such a tool be liable for infringement as well? It bears mentioning that copyright infringement can be direct, contributory, or vicarious. To complicate matters further, some publishers and other content producers could find themselves on both sides of the AI usage aisle — as content owners seeking to be paid for the use of their content to train AI models and as users of AI tools to generate their content.11
- Copyright Protectability: The U.S. Copyright Office recently denied an attempt to register copyright in individual images created using the Midjourney AI tool.12 At the same time, the Office said that it "will register works that contain otherwise unprotectable material that has been edited, modified, or otherwise revised by a human author, but only if the new work contains 'a sufficient amount of original authorship' to itself qualify for copyright protection."13 While this decision could be appealed, it provides directional guidance and suggests that the more human alteration and involvement is involved in the creative process, the more likely the creator will be able to claim copyright in the finished work. On March 10, 2023, the U.S. Copyright Office published guidance on the copyrightability of works created using generative AI.14 That guidance reaffirms that some amount of "creative input or intervention from a human author" is required." But, of course, that begs the question, how much?
- Trademark Infringement and Unfair Competition: In its lawsuit against Stable Diffusion in the United States District Court for the District of Delaware, Getty Images asserts, inter alia, that the inclusion in Stable Diffusion/DreamStudio's outputs of Getty Images marks or visually degraded versions thereof give rise to claims of trademark infringement, unfair competition, trademark dilution and deceptive trade practices.15 Could media companies that publish such outputs have liability for doing so?
- Right of Publicity: AI may be used to alter an individual's voice and image, thereby raising questions about whether an individual can control the right to use their voice or image for AI purposes. The actor James Earl Jones reportedly recently granted a Ukrainian startup a license of his voice, allowing the company to recreate his iconic Darth Vader voice using AI. Depending on the nature of the AI use and whether the individual's voice or image is recognizable, state right of publicity statutes, which exist in some, but not all, states and vary among those states in which they exist, may provide protection for the individual (and, in some states and under certain circumstances, the individual's heirs) against use of the individual's voice and image (in addition to potential copyright claims where the voice or image was taken from, or resembles elements of, a prior copyright-protected work).
- Trade Secrets and Confidential Information: A media company's inputs into an AI tool may be used to train the AI tool's model, thereby leading to the risk that those inputs could be included in outputs to a third-party user.16 Given that trade secret laws require that trade secrets be maintained in secrecy, the inputting of trade secrets creates a risk of loss of trade secret protection. The inputting of third-party confidential information held by a media company could similarly run afoul of themedia company's non-use or non-disclosure obligations.
- Insurance Considerations: Media companies should ascertain the position of their Errors & Omissions liability insurance carriers on the use of AI and what pre-publication or pre-broadcast review processes their carriers may require.
- Consumer Protection: With the proliferation of virtual influencers,17 which could potentially be AI-powered, the Federal Trade Commission has proposed revisions to its Guides Concerning the Use of Endorsements and Testimonials in Advertising18 (the "Guides") that would include virtual influencers.19 Thus, brands that work with virtual influencers would need to disclose their connection and otherwise comply with the Guides. This raises the question of how, in the context of a virtual influencer, the Federal Trade Commission would enforce the requirement that influencers' endorsements reflect the honest opinions of the influencer and that the influencer be a genuine user of the product . Further, companies should consider disclosing that the influencer is not human.
- Content Integrity: AI outputs may be factually inaccurate or even false, thereby creating a risk that publication of content based on those outputs could lead to defamation claims. AI tools may inadvertently plagiarize a previous work. AI also has the potential to complicate efforts to validate the identity of sources and to make more challenging reliance during the research process on supposed media reports or social media. AI data set inputs and algorithms may include biases that result in biases in output content. Further, given the risk that AI tool inputs could be included in outputs to a third-party user, the identity of confidential sources could be exposed if inputted into AI. Having clear content integrity guidelines relating to the use of AI20 may help media companies mitigate some of these risks, and companies should consider requiring human review of any investigative or other news reportage generated using AI21, or even wholesale prohibition on the use of AI by its employees and contractors in connection with that content.
- Regulatory and Compliance:
- Computer Fraud and Abuse Act of 1986 ("CFAA"): Does data-scraping by AI tool providers of sites whose terms of service prohibit such activities create the risk of claims under the Computer Fraud and Abuse Act, which prohibits accessing a computer without, or in excess of, authorization and carries criminal liability? If so, are there circumstances in which a publisher or other media company could be found guilty of aiding and abetting the commission of such an offense? The Supreme Court narrowed application of the CFAA a couple years ago,22 but data-scraping, and in particular the manner in which it is performed, may still subject one to a CFAA charge and remains fraught with legal peril.23
- Data Privacy and Protection Violations: The use of data sets containing personal data by providers of AI tools to train AI models or as inputs by media companies to generate content implicates applicable data protection laws. Users of personal data for these purposes may be subject to substantial penalties24 if they do not obtain that personal data in compliance with such laws.
- Section 230 of the Communications Decency Act: The Communications Decency Act generally provides immunity for online computer services with respect to third-party content generated by its users. For media companies that host user-generated content, could the fact that hosted content is generated by AI affect such companies' immunity under the Act?
- Labor: How will labor unions such as SAG-AFTRA, WGA and the NewsGuild address use of their members' performances and creative material in connection with AI inputs and outputs?25
As media and entertainment companies determine how AI can play a role in optimizing their content-creation generation processes, they should consider developing robust governance around the use of AI, hand-in-hand with responsible, self-regulatory codes of conduct28 and best practices to mitigate legal and reputational risk and preserve brand safety.
Consideration should be given to adopting the following specific practical steps and guardrails:
- Identification of Use Cases and Risk Assessment: Companies should identify the specific types of applications for which their employees and contractors could use AI in connection with the generation of content. Once these potential applications have been identified, companies should rank different types of use cases and categories of synthetic media based on level of risks. For example, publishing content that is being syndicated to third parties and investigative and other news content may be deemed high risk, such that a company prohibits the use of AI in connection with that content. As another example, companies should consider prohibiting the use of trade secrets and confidential materials as inputs into AI tools.
- Auditing: Companies should perform periodic internal audits of content to determine whether it was generated by AI tools in compliance with company policies.29
- Oversight: Companies should consider designating content integrity personnel to oversee and monitor the use of AI, especially in permitted higher-risk use cases.
- Training: Employees and contractors who generate content should periodically undergo training in the appropriate use of AI and related company policies. Companies may want to further consider requiring their employees and contractors to certify that they have reviewed company policies regarding AI.
- Transparency and Disclosure: Companies should consider identifying (e.g., by applying disclosures to) content generated using AI when publishing or otherwise disseminating or sharing that content. 30This identification may specify the particular manner in which AI was used in connection with generation of that particular content. As an example (and to help support the argument for copyright registrability), for content created using AI tools, companies could include explanations in the end credits detailing exactly how AI impacted the final work and how much the work was altered by humans.
The introduction of AI for creation of synthetic media is a potentially transformative moment for the media and entertainment industries, but carries with it significant uncertainties. As the landscape rapidly evolves, the implementation of robust governance and frameworks may help to mitigate some of the legal and reputational risks that media and entertainment companies face when deploying AI as part of their content generation processes.
1. ChatGPT reached 100 million users within two months after its launch, becoming "the fastest-growing internet service ever." Will Douglas Heaven, ChatGPT is everywhere. Here's where it came from, MIT Technology Review (Feb. 8, 2023), ChatGPT is everywhere. Here's where it came from | MIT Technology Review.
2. Connie Guglielmo, CNET is testing an AI Engine. Here's What We've Learned, Mistakes and All, CNET (Jan. 25, 2023), CNET Is Testing an AI Engine. Here's What We've Learned, Mistakes and All - CNET
3. Brian Contreras, A.I. is here and it's making movies. Is Hollywood ready? (December 19, 2022), A.I. is here, and it's making movies. Is Hollywood ready? - Los Angeles Times (latimes.com)
4. George Winslow, Metaphysic Partners with CAA to Expand Use of Generative AI in Film, TVTech (Jan. 31, 2023), Metaphysic Partners with CAA to Expand Use of Generative AI in Film, TV | TV Tech (tvtechnology.com).
5. James Vincent, The lawsuit that could rewrite the rules of AI copyright, The Verge (Nov. 8, 2022), The lawsuit against Microsoft, GitHub and OpenAI that could change the rules of AI copyright - The Verge
6. There is disagreement over the likelihood that AI tools will copy existing works in their outputs. A recent research study found that certain AI models memorize and regenerate individual images used as inputs to train the model. Extracting Training Data from Diffusion Models, Cornell University (Jan. 30, 2023), [2301.13188] Extracting Training Data from Diffusion Models (arxiv.org).
7. The USPTO has stated that the training process "will almost by definition involve the reproduction of entire works or substantial portions thereof." Generative Artificial Intelligence and Copyright Law, Congressional Research Service (Feb. 24, 2023), Generative Artificial Intelligence and Copyright Law (congress.gov).
8. To determine whether the use of a work is fair use, four non-exclusive statutory factors must be considered: (1) the purpose and character of the use, including whether it is of a commercial nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) the effect of the use on the potential market for or value of the copyrighted work. See Generative Artificial Intelligence and Copyright Law, Congressional Research Service (Feb. 24, 2023), Generative Artificial Intelligence and Copyright Law (congress.gov); 17 U.S.C. § 107.
9. The first of the four statutory fair use factors focuses on the purpose and character of the use. For this factor, courts typically inquire into (1) whether the use is of a commercial nature, and (2) whether the use is transformative. Courts are more likely to consider transformative uses as fair. A use is transformative if it "add[s] something new, with a further purpose or different character, and do[es] not substitute for the original use of the work." U.S. Copyright Office Fair Use Index (Feb. 2023), U.S. Copyright Office Fair Use Index.
10. Getty Images (US), Inc. v. Stability AI, Inc., No. 123-cv-00135 (D. Del., filed Feb. 3, 2023); Andersen et al v. Stability AI Ltd. et al, Docket No. 3:23-cv-00201 (N.D. Cal. Jan. 13, 2023).
11. Keach Hagey, Alexandra Bruell, Tom Dotan, and Miles Kruppa, Publishers Prepare for Showdown With Microsoft, Google Over AI Tools, WSJ (Mar. 22, 2023), Publishers Prepare for Showdown With Microsoft, Google Over AI Tools - WSJ.
12. U.S. Copyright Office, Zarya of the Dawn (Feb. 21, 2023), 2023.02.21 Zarya of the Dawn Letter (copyright.gov) (reasoning that the images generated by Midjourney Technology were "not the product of human authorship.")
13. Id. at 11.
14. Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16190 (Mar. 16, 2023).
15. Getty Images (US), Inc. v. Stability AI, Inc., D. Del., No. 1:23-cv-00135, filed Feb. 3, 2023.
17. In 2020, it was proclaimed that virtual influencers commanded "three times higher engagement than human influencers." Matt Klein, The Problematic Fakery of Lil Miquela Explained—An Exploration of Virtual Influencers and Realness, Forbes (Nov. 20, 2020), The Problematic Fakery Of Lil Miquela Explained—An Exploration Of Virtual Influencers and Realness (forbes.com); Lil Miquela, a "19-year-old robot," currently has 2.8 million followers on Instagram.
18. Guides Concerning the Use of Endorsements and Testimonials in Advertising, A Proposed Rule by the Federal Trade Commission, Federal Register (Jul. 26, 2022), Federal Register :: Guides Concerning the Use of Endorsements and Testimonials in Advertising.
19. Federal Register :: Guides Concerning the Use of Endorsements and Testimonials in Advertising (stating "The Commission proposes a modification indicating that an endorser could instead simply appear to be an individual, group, or institution. Thus, the Guides would clearly apply to endorsements by fabricated endorsers.").
20. For example, WIRED has published an official AI policy that spells out how the publication plans to use AI technology. See How WIRED Will Use Generative AI Tools, WIRED, https://www.wired.com/about/generative-ai-policy/. - Google Search
21. For example, although BuzzFeed is using AI to assist with content creation, at the moment, it will not use artificial intelligence to write news stories. See Oliver Darcy, BuzzFeed says it will use AI to help create content, stock jumps 150% | CNN Business.
22. See Van Buren v. United States, 141 S. Ct. 1648 (2021).
23. Even if the CFAA is deemed to not apply, a data scraper (someone who enables it) could still face claims under a host of legal theories including trespass to chattels, copyright infringement, misappropriation, unjust enrichment, conversion, breach of contract or breach of privacy claims.
24. In addition to steep financial penalties, there is also a risk of disgorgement of the outputs. The FTC required companies that used deceptive data practices to build AI models to destroy the data used as well as the models developed using such data. See Mary Ashley Salvino, ANALYSIS: FTC Privacy Authority Is Poised for Breakthrough Year, Bloomberg Law (Nov. 13, 2022), ANALYSIS: FTC Privacy Authority Is Poised for Breakthrough Year (bloomberglaw.com).
25. SAG-AFTRA Executive Vice President Ben Whitehair noted the importance of protecting digital performances and artists' likeness as AI-generated content grows. See Entertainment in the Age of A.I., SAG-AFTRA (Aug. 10, 2022), Entertainment in the Age of A.I. | SAG-AFTRA (sagaftra.org).
27. See STABILITY AI API Terms of Service, Stability AI (Dec. 14, 2022), Platform (stability.ai).
28. Ethical self-regulatory frameworks may help to provide conceptual guidance. One such example is The Partnership on AI's Responsible Practices for Synthetic Media, a set of recommendations to support the ethical and responsible development and deployment of synthetic media. See PAI's Responsible Practices for Synthetic Media, A Framework for Collective Action, Partnership on AI, PAI's Responsible Practices for Synthetic Media - Partnership on AI - Synthetic Media (last visited Mar. 15, 2023); see also Artificial Intelligence Risk Management Framework (AI RMF 1.0), NIST (Jan. 2023), Artificial Intelligence Risk Management Framework (AI RMF 1.0) (nist.gov).
29. Commercially available tools exist that enable users to detect AI writing. Examples of such tools are: AI Writing Check, GPTZero, and AI Text Classifier.
30. In certain instances, disclaimers informing users that AI is being used may be required by the AI provider. For example, see Usage policies, OpenAI (Mar. 23, 2023), Usage policies (openai.com) ("Consumer-facing uses of our models... in news generation or news summarization... must provide a disclaimer to users informing them that AI is being used and of its potential limitations.").
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