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Vanderbilt Journal of Entertainment & Technology Law

First Page

451

Abstract

Copyright and AI need not be a copyright no man’s land. Recent decisions by the Copyright Office have gotten so much media attention that many creators are unsure if they can secure copyright protection if they use AI as a creative tool. The proposed creative control paradigm can help us all tackle the challenge of determining when works created with the assistance of AI are copyrightable. Instead of relying on long-established nuanced precedent for protecting works generated with new technology, the Copyright Office asserts that any content generated with assistance from AI tools is unprotectable. This position is radically inconsistent with foundational copyright precedent. Copyright authorship and originality principles have long permitted ownership of content made using content generated by cutting edge technology or the assistance of other creators. Copyright authorship doctrine permits authors to own content created with such tools or by contributors who are not co-authors. If an author can own copyrights in content created collaboratively with a non-author creator or another mechanical tool, why can’t that author own a work created using an AI platform? The work-for-hire doctrine permits non-human companies to own content they direct their employees to create. It is inconsistent to permit nonhumans to own content created by humans but refuse to allow humans to own content they direct machines to create. Derivative works are protectable even when they are based on preexisting public domain content. Why can’t a photographer own a copyright in a work if AI was used to create the first draft? No clear principle indicates why content generated by AI should be treated so differently from other works that contain unprotectable elements. When an author satisfies the originality and authorship standards, but the work cannot be disaggregated from their first AI generated draft, the creative contributions should be copyrightable despite the use of unprotectible building blocks, comparable to words in a language or colors in a palette. In an era when AI is so prevalent, artists may not even be aware of all the applications that incorporate it. When everyone from software engineers to artists, filmmakers to writers, and translators to composers are using AI, everyone needs clarity about who can protect what. In addition to being unclear and inconsistent with settled copyright doctrine, the Office’s position is creating bizarre incentives. Telling the truth about the creative process could jeopardize copyright protection, especially for authors without access to copyright counsel. By asserting that the use of generative AI defeats copyrightability absent detailed disclaimers, the Copyright Office may be incentivizing applicants to lie about their creative process or abandon efforts of registration, if they used AI as a creative tool. For these reasons, the current position of the Copyright Office on the protectability of AI-generated works should be clarified in a way that is consistent with foundational copyright doctrine. Instead of refusing to engage with the creative possibilities and limitations of AI, courts and the Copyright Office could apply a creative control paradigm to meet the challenge of discerning when works generated with the assistance of AI should be protected.

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