Artificial Intelligence (“AI”) is used by more people than ever, and it has firmly positioned itself as one of the great new technological frontiers. However, whether you are using AI to generate audios for your personal TikTok or to ghostwrite blog posts and copy for your business, the Copyright Office has put its foot down. You don’t own copyright in anything the AI produces – in fact, nobody does!

As you can imagine, this stance can have significant impacts for your agency and the valuable intellectual property you create both for yourself and clients. It is important that you stay informed, and reading this article is your first step.

1. What exactly does the Copyright Office say about AI-generated material?

The Copyright Office has made it very clear that, at this time, AI-generated materials do not receive copyright protection. This is because one of the main requirements for copyright protection is that a human being must create the material.

This article, for example, is protected by copyright because the author is a human being clacking away at the keys. However, if the author steals her friend’s cat, sets the cat on the desk, and lets the cat smash the keys, the cat’s musings would not receive copyright protection.

The same is true for AI or robots– unfortunately, no matter how “smart” or “lifelike” our technology may seem, AI cannot author a copyrightable work. Therefore, any AI-generated works are essentially considered to be in the public domain and free for anyone to use.

You may be asking yourself, “Didn’t a human write the AI program? Doesn’t that matter?” and that’s a great thought. Indeed, most AI programs are written by human beings. However, this only means that the program itself and the code comprising it are protected by copyright law. The products of the program are not.

2. Why does this matter to me?

As an agency, you provide valuable intellectual property to your clients. Right now, if your team of human beings produces deliverables for your client (and your contract allows it), your client will own the deliverables AND any underlying intellectual property rights. Your client can assert these rights against anyone in the world, register the work with the Copyright Office, pursue infringers, and monetize the work as an asset of the business. Nobody else has the rights to the deliverables except for the client, and for competitive, fast-paced economies, this aspect is essential to success.

If, on the other hand, you create a deliverable using Artificial Intelligence, your deliverable is no longer protected by copyright law and therefore has no intellectual property-based value. Your client cannot register the deliverable with the copyright office or stop anyone else from using it. The value of the deliverable, in short, has taken a nosedive.

Imagine using AI to write a blog post for a client that does moderately well, and the next day the client comes to you and says “Hey, Apple stole the blog and has gotten millions of hits!” As copyright law currently stands, you would unfortunately have to tell your client “Sorry, we used AI to produce that – you are out of luck.” As you can imagine, this would probably not go over well.

Lastly, your contracts likely contain clauses saying that you assign all copyright in the deliverables to your client (or that you are providing a license). If you are utilizing AI to create deliverables, you are very likely in breach of this clause because you do not have the right to assign or license the copyright. In addition to the issues above, this aspect simply opens you up to a legal dispute.

3. Are there any exceptions?

In short, no, there are currently no exceptions to the Copyright Office’s stance. However, the Copyright Office has stated that they may recognize copyright protection in (i) compilations or arrangements of AI-generated pieces, (ii) larger works containing elements generated by AI, or (iii) AI-generated works that have been altered substantially by a human. In these examples, the human-created aspects of the work would be eligible for protection, and the AI elements would not. This would be the same situation as if you were incorporating a passage of Romeo and Juliet (a work of public domain) into a work of your own. The Shakespearean passage would not receive protection, but the rest of your work would.

4. What should I be doing right now to prepare?

• Use caution. First and foremost, use AI with caution. Especially when creating deliverables, works that are intended to be high value, works used as trademarks/brand elements, or works that are of significant importance to the client, you should consider avoiding AI. With that being said, for other matters, AI can be an extremely beneficial tool. Use your best judgment and consult your lawyer and your client if you have concerns or questions.
• Talk with your team. Second, talk to your employees and independent contractors (and send them this article, of course). Many individuals have begun to use AI to perform work-related tasks, but not all individuals disclose this information to the agency! Everyone should be on the same page about the agency’s AI policies. Additionally, update your contracts with employees and contractors to include AI-specific clauses indicating that the technology cannot be used without the agency’s permission.
• Communicate with your clients. Third, if you do intend to utilize AI, notify your client up front that you will be doing so, and include a clause in your services contracts indicating that the client will not have rights in AI-generated work. Talk to your lawyer about the proper terminology to use.
• Stay informed. In March 2023, the Copyright Office launched an initiative to research, learn, and develop its stance on Artificial Intelligence. You can explore updates here, and you can also attend live events to keep yourself informed and make your voice heard.

Of course, you should also subscribe to this newsletter, as Legal + Creative will continue to provide updates as the Copyright Office issues more information.