AI has been dramatically altering the creative landscape, offering new possibilities and challenges for content creators, media and gaming companies, and technology platforms. At AI & Creativity, a NY Tech Week Salon, co-hosted by Fenwick, Artist and the Machine, and Spice Capital, there were two panels that led a human-centric discussion on AI, focusing on how AI can augment, inspire and potentially disrupt the creative process:
- In the first panel, Daisy Alioto (Dirt) spoke with various technology platforms (e.g., Beehiv, Wombo, and Anon) powered by AI on the new age creative stack from content creation through distribution.
- In the second panel, Evan Kelman (Scriptgen) interviewed Fenwick Partner Vejay Lalla for a fireside chat on various legal topics and implications on using AI.
Here are some key takeaways from the event:
- Creators are adapting to AI and using it to enhance their creativity. While AI can be a threat to creators, it can also be a tool to help them generate new ideas, experiment with different styles and reach new audiences. For example, back in the early 2010s, Meta (known at the time as Facebook) created a platform to share new types of media, and BuzzFeed quickly adopted this medium to optimize its content and distribution. As one panelist put it, “AI is a new medium, not a new competitor.” The panelists emphasized that creators should embrace AI as part of their toolkit and be ready to pivot and innovate as technology evolves. Additionally, creators can utilize AI to further advertise and monetize their content. For example, they can use AI to sift through thousands of email responses or social media comments and derive market-driven insights about their fan base. By using AI to automate iterative design tasks or data science calculations, creators can focus more on creativity, curation, and taste.
- Creators should be aware of the copyrightability issues when using AI tools. The U.S. Copyright Office has repeatedly emphasized the “human authorship requirement” to registered copyrightable works. It has held that works generated by AI tools solely in response to a prompt are not eligible for copyright protection, regardless of the level of creativity of the prompt and while the combination of the output generated by an AI tool and creative expression may be entitled to protection under the law, the underlying output solely generated by the AI tool is not. As Vejay Lalla put it in the fireside chat, use AI as an arrow in your quiver, but it cannot be your sole weapon. AI can also support more efficient and scalable production where creators may not care to protect certain less production elements of a novel, series, or game, they need to be more careful when creating, for example, expressive characters they want to protect from a copyright perspective.
As noted above, AI-generated content that is modified or edited by human authors may be registered if the work presents a sufficient amount of original authorship. Further, in many cases, the U.S. Copyright Office has treated works incorporating AI-generated elements as “compilations”: it recognizes the creator as the author of the selection and arrangement of the entire work. A couple key tips for registering a work with AI generated elements:
- Creators should ensure that they have some creative control over the final work, either by modifying the outputs, injecting the Creator’s voice or style into the outputs or curating and arranging various outputs.
- Creators should document and identify which parts of their works were created by AI and which by humans to include the appropriate descriptions on the work and disclaimers pertaining to AI generated elements.
- Creators should not identify any AI tool as an author or co-author of a work simply due to the fact that they used an AI tool during the creation process.
Businesses offering AI tools should be transparent about their terms of use and data practices. AI tools often rely on large amounts of data, including user-generated and creator-based content, to train and improve their algorithms. This raises questions about how the AI providers use, store, share, and protect the data and the intellectual property rights of their creator customers. Businesses should clearly communicate to their users how they handle their creators’ data and content rights, and what rights and obligations they have in relation to them. Creators—and now even regulators at the state and federal level—are paying close attention to these terms to ensure that the AI providers are transparent and not misleading. Truth in advertising takes on a whole new meaning in a world where voices and content may solely be generated by technology and laws are ever changing to find a balance.
AI and creativity are not mutually exclusive, but rather complementary. By understanding the legal and practical aspects of using AI tools, creators and businesses providing the tools can leverage AI to create and deliver engaging and innovative content but need to do so in a way that is not only lawful and meets both federal and evolving state regulations, but also is ethical and consistent with a company’s relationship with its customers whether on a business to business or business to consumer level.