This Digital Human has been created by our artist using different AI softwares. She moves, talks, and answers questions. But what kind of right do we have over her?
Is this digital human protected by copyright law?
No. This has been created by AI, even though our artist has been involved in the whole process. At this moment, the USCO doesn’t grant protection for AI generated work. Therefore, we cannot apply for copyright protection.
Is what she is saying protected?
It depends. This is what is called the input issue, which has 2 sides. Where does she get the information from? If it is from the global internet, she might have issues, the information is probably protected. But if what he is saying is solely our composition, we are free from risks, and can seek protection for our work, as it has been generated by ourselves.
Can we get any kind of protection for her?
Yes, we can. First, the trademark is protectable. Including the trade dress. Moreover, some part of copyright protection can be granted, for parts of the creation that are not the product of the AI softwares.
May we get sued for creating her?
Once again, it depends. This is the other face of the input problem. From what material has she been created? If it is from images on the internet, same issue: they might be protected. If we feed the software with our own information, then we are free from risks.
What about our artist: how can he get protected from any kind of litigation?
Best way to protect an agent from issues: draft of a contract. Review the contract about IP ownership, Indemnifications clauses, …
What happens next?
This is a global painting of what the situation is like today. Following Naruto v. Slater, a case where an association was seeking protection for a monkey which had taken selfies, copyright protection should be granted only to human works. This includes protection from every type of work created by Ai. However, we’re navigating in a gray area here. Naruto is considering animals, not computers. And this has not been an issue for years, while AI was not generating more than blurry images. But AI technology had a terrific development last year, and as often, the law is trying to catch up with reality. Yet, we cannot be sure about what the law will become in the future but for sure, it is gonna change. Let’s try to evaluate the different outcomes from those issues:
Scenario 1 : Work generated with AI can get copyright protection from the artist. This is the direction the US and most of the other countries seem to go to. In this scenario, when getting an application, the Office of Registration will analyze the way the artist created the work, in particular his level of implication in the work. In simple words: is he using AI as a tool or is he asking the AI to create the work. To see your work protected, you would need to show that you, a human, injected enough of human originality in this work, selecting generations, modifying the results, to reach a unique, human created work. This work would be completely protectable then. This is the decision reached by the Office when granting a comic book entirely AI generated copyright protection in September 2022. Yet the decision is under review. But if copyright protection is granted, then suits for infringement will be filed, and eventually, the law will change, one way or another.
Scenario 2: Work generated with AI can get protection for the programmer. This is an option that will probably be applied in the UK for instance. The regulations are less strict; a machine might get the rights. And if it is so, the human enjoying those rights would be the one programming the AI software. But in this scenario, programmers would probably include in their terms an assignment of their rights to the users. Still, it will mean that the artist will never be completely the copyright owner, only the assignee. And an assignment of rights can always be terminated.
Scenario 3: No protection for AI generated works. In this scenario, the USCO decides that any type of work in which AI is implied should not get any type of copyright protection, because it would go against the spirit of the protection, designed for human beings, not machines. In this case, you would still have the possibility to exploit some other rights, such as trademark protection, but would not be able to protect your work from copies.
Silvia Sun, Esq.
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