Navigate the Legal Maze of AI, Generative Works and Copyright Laws.
What you need to know to protect your creative work.
Explore the Complex World of AI, Copyright & Creator Economy
If you create content, in any form such as written works, artwork, client work, creative or coursework…then you need to protect yourself.
In one of the most engaging discussions on Endless Coffee Cup, we learn about the clash between AI and copyright. but even more, we cover creative works, social media sharing, user-generated content, and contracts! If you are in the creative space, this is a must-listen.
Grab a cup (or two) of coffee as we cover these subjects:
The Complexities of Copyright Ownership:
1. What are the biggest challenges creators face when it comes to copyright ownership and AI-generated content?
2. How important is it for a creator to distinguish between human-created and AI-generated elements in their work?
The Role of AI in Content Creation and Digital Courses:
1. In what ways should creators using AI in digital courses prepare to face copyright and intellectual property issues?
2. How can a creator prove the human-generated portion of their work when AI is involved?
Legal Profession and AI Adaptation:
1. Why do you think the legal profession and regulators are lagging behind the business applications of AI?
2. What possible solutions could help the legal profession catch up with the advancements in AI?
Data Privacy and AI Standards:
1. How do varying approaches to data privacy in the United States and other places like the EU and Canada affect creators and marketers?
2. Why is it important for international creators to be aware of the copyright enforcement challenges they might face?
Legal Implications of Adopting User-Generated Content:
1. What are some of the key legal considerations brands should have when using user-generated content?
2. What are examples of instances where brands successfully navigated the use of user-generated content without legal pitfalls?
Intellectual Property Protection and Digital Courses:
1. Why should course creators consider protecting their works?
2. Sharon outlines some actionable steps content creators can take to protect their intellectual property.
Addressing DMCA Issues on YouTube:
1. What strategies can YouTubers use to avoid falling foul of DMCA claims?
2. How does fair use play into content creation on platforms like YouTube, and why is it not a reliable defense?
The Role of Human Creativity in the Age of AI:
1. In what ways does human judgment and innovation will remain indispensable despite AI advancements?
2. Is human creativity being devalued due to AI-generated content?
Educating Marketers on Legal Issues Proactively:
1. Why do agency owners and marketers need to do to take proactive steps in protecting themselves?
2. How does Sharon suggest overcoming this resistance to encourage a proactive legal strategy?
<span class=”block”>”If the output is confusingly similar to an original piece of content that somebody else owns the rights to and you adopt it, you’re a copyright infringer. You may not have been a knowing copyright infringer, but you’re a copyright infringer.” </span>
The Triangle Framework – A Must for Creator Businesses
Sharon introduces a genius “triangle framework” to embrace IP protection. The three core elements—brand, content, and transactions—are crucial for your business’s IP strategy. Here’s a sneak peek:
- Brand Strategy & Trademark : Why your brand should be legally secured.
- Copyright Protection & Registration : Safeguard your original content from being infringed upon.
- Transactions & Licensing: Stay on top of the complex reality of licensing and contracts, especially when dealing with independent contractors.
Show Notes:
AI Influenced Creative Work
[00:00:00] Sharon: The interesting question is, what happens when, and this is a typical scenario, I used AI for inspiration, I got an initial draft of something, that I then as a human went in and edited, polished, added to, so now you have a work, at the end of the day, that is a combination of AI created work and human created work.
[00:00:24] Sharon: What’s the copyright ownership status of that?
Welcome to the Endless Coffee Cup podcast
[00:00:27] Voice Over: Welcome to Endless Coffee Cup, a regular discussion of marketing news, culture, and media for our complex digital lifestyle. Join Matt Bailey as he engages in conversation to find insights beyond the latest headlines and deeper understanding for those involved in marketing.
[00:00:43] Voice Over: Grab a cup of coffee. Have a seat.
[00:00:46] Matt: And thanks for
[00:00:46] Voice Over: joining.
[00:00:47] Matt: Well, hello and welcome to another edition of the endless coffee cup podcast. As always, I’m your host, Matt Bailey. And today I am really excited because we are going to talk about something I’ve been wanting to talk about for a long time, and it’s about time we get to this.
[00:01:04] Matt: And it is about the legal issues around copyright. AI about protecting your assets. And I’ve got a great guest with me. Sharon Toric. Sharon is the founder of Toric Law, and she specializes in creative and marketing and helping people understand how to protect and enforce their creative assets. Sharon, thank you so much for making time today.
[00:01:31] Sharon: Hi, Matt. It’s so great to be here with you. Thanks for having me.
[00:01:34] Matt: Well, before we even get started, could you just introduce yourself a little bit about your background and what made you want to specialize in working with, you know, advertising and marketing?
Sharon Toerek, Intellectual Property Lawyer
[00:01:47] Sharon: You know, it’s, I am an intellectual property lawyer by training.
[00:01:51] Sharon: It’s sort of how I got my start as a practicing lawyer. Back in the days, early days out of law school. And I have always loved brands, brand protection, copyright. And it just was a sort of natural migration to work with lots of leading calm creators back in the day, but basically creators and. Most of them tended to be in the marketing space because there’s a lot of need for new ideation, um, lots of brand development, and that had a lot of trademark consequences, lots of creative work being developed, and that had copyright consequences.
[00:02:25] Sharon: And so as time went on, I just started working with more and more marketers. Which sort of in, you know, funneled down into working with marketing services firms. And so today my current firm, which is about 10 years old soon, focuses on representing independent marketing service firms across the U S and we help them basically in three buckets.
[00:02:45] Sharon: One of them is the trademark copyright and other IP. Protection and monetization, right? How to turn those assets into money, contract development and negotiations for marketing services, firms, and then marketing regulation compliance. And so that is making certain that the campaigns and the work that agencies and their market or clients create together stays compliant with the law as it goes out there into the world.
[00:03:11] Matt: Fantastic. I, amazing. I, I can sense the, the listeners with questions already coming in. So this is just such a fascinating area and working with marketers, I don’t know, is it got to be a challenge with you? Because, you know, I feel like there’s a certain mentality that goes into it.
[00:03:29] Sharon: You know, I, look, I will say this about.
Legal Risks for Agencies, Entrepreneurs, and Creators
[00:03:32] Sharon: The owners and leaders of marketing agencies, marketing service firms. And I think this is true really of entrepreneurs in general, they tend to be more comfortable with risk taking than other kinds of business owners. So if you’re a large enterprise, especially if you’re a publicly owned one, you have all kinds of legal regulatory and shareholder concerns.
[00:03:55] Sharon: You’re always there keeping you conservative about risk. Um, if you’re a mom and pop. Type of a business that intends to stay either lifestyle or small. You’re probably not going to be taking that many risks along the way, or they’re going to be very calculated. And, but there’s that entrepreneurship segment in the middle.
[00:04:14] Sharon: That’s just generally more comfortable with making bigger bets, taking bigger risks and a subset of them are marketing agency owners, and they’re even more comfortable. They also move at a really fast pace. Combine the two of them. When the two of those factors, it can be sometimes challenging to get them interested in slowing down enough to be proactive about legal affairs.
[00:04:37] Sharon: And so that’s where we come in to try to, you know, take the friction out of it, build some education into the way we work with it so that they understand the value of addressing legal issues early rather than later. So it is a challenging audience to serve, but I love it because we get a front row seat to such amazing creativity.
[00:04:59] Sharon: And I really feel like the work that they do, it moves our culture and it impacts commerce and it’s important. And so we’re happy to be a resource for them.
[00:05:12] Matt: That’s fantastic. I, you, especially in an industry where they love the phrase, move fast and break things. That’s an amazing thing to
[00:05:19] Sharon: hear. We lawyers are with our push brooms kind of clean up and I’m trying to flip that script so that they’re sort of, you know, go ahead and break stuff if you want to, but just.
[00:05:29] Sharon: Take one minute and learn about the risks before you do that. So that you’re going into it with open eyes.
[00:05:35] Matt: Yeah. Slowing people down sometimes I find is a challenge, you know, when they know what they want, they’re moving for it, they’re going to move fast. And you’re just asking them to slow down because trust me, it’ll work out better in the end.
[00:05:48] Matt: We worked through a few things here.
[00:05:50] Sharon: Yeah. The irony is you end up saving time and money too, if you build a proactive legal process into the way you work. Yeah. Because it’s sort of, I don’t know if you had a grandfather, whoever said, you know, measure twice, cut once, but it’s that old, you know, put your process in place one time, assess the risk one time.
[00:06:10] Sharon: And it’s fairly evergreen in lots of situations. So you don’t have to do it again and I’ll save you time and money later. But you need to take a pause now, right. In order for that to happen.
[00:06:20] Matt: I couldn’t agree more as I’ve gotten older, I have learned the value of process and frameworks and boy, that is a great thing to hear.
Protecting Your Work as a Creator-Based Businesses
[00:06:30] Matt: Well, I wanted to, so let’s start a little bit, you, one of your areas of businesses in trademark and copyright, you know, especially when we talk about the, you know, boy, I can’t, there’s about 10 questions now so we can talk about content creators. This is the. You know, I’m seeing a lot more about the creator economy.
[00:06:48] Matt: More and more people are making money by creating content. And I think also it’s the number one job aspiration for kids today is they want to be a creator or an influencer. What are some things that people should, let’s just say. Someone wants to start creating content or an agency is creating content.
[00:07:11] Matt: What are some of the things that they need to know? You know, as we said, what’s that slow down and start thinking about some things that they need to know as they get into this industry,
[00:07:22] Sharon: right? Right. Well, I think the first thing I would say is. There is definitely a difference between being a creator and being an influencer.
[00:07:29] Sharon: And so if you take nothing away from this, but that today, then I would be a happy woman.
[00:07:35] Matt: I appreciate the distinction. Yes.
Triangle Framework for Protecting Intellectual Property: Brand, Content, & Transactions
[00:07:37] Sharon: I am a fan of sets of three. I don’t know why. I don’t know if it was a math teacher in my childhood or I don’t know. I like, I think of things in sets of three. And so at my firm, we sort of have a, what I call a triangle.
[00:07:52] Sharon: Framework for thinking about intellectual property for creator based businesses. And that could be a marketing agency. It could be a professional coaching or consulting firm. It could be a digital learning business, whatever. If it involves the packaging and manifestation of knowledge or content in some tangible form, whether it’s a marketing campaign or.
[00:08:16] Sharon: Or a digital course that you can get on demand. There’s sort of a three part framework we use, and I call it a triangle. But so you’ve got brand. That’s the first point of the triangle. What are you going to call yourself and call the things that you are putting out into the world that you’re selling?
[00:08:37] Sharon: And this is usually Associated with trademark implications. So I think one thing that creator based businesses probably don’t do early enough is think about what their brand strategy is and what trademark due diligence they might have to do to make sure that they’re not adopting and putting resources behind developing a brand identity, which is.
[00:08:59] Sharon: Whether it’s just a word or words and pictures or a fancy logo, whatever it might be that then ends up being for some reason unavailable due to trademark issues. So you’ve got brand which invokes trademark due diligence, trademark registrations, trademark protection. As the business gets bigger, sometimes trademark licensing where you allow other parties to use your brand in some sort of business relationship.
[00:09:25] Sharon: Then the second point of the triangle is what I call your content. So you’ve got brand first and content. That is the stuff that you’re putting out into the world. Again, whether it’s a marketing campaign, whether it’s a brand identity for another client, whether it’s that digital course, whether it’s a pitch deck or a presentation.
[00:09:44] Sharon: Or a speech you’re giving at a major conference of work that is really, you know, at the heart of what you stand for. That’s your content. And usually we’re invoking copyright when it comes as a legal concept to protect the content. Whether it’s copyright registrations, whether it’s being certain that we put copyright notices where they need to go on all of our assets, or whether it’s just giving people fair warning that this is our original copyrighted material, there’s lots of different strategies, right?
[00:10:14] Sharon: We can drill into those later if we have time, but copyright and content. So we’ve got brand, we’ve got content. Then the third point of the triangle really quickly is your transactions. And here is, I think, the trickiest part of IP protection for lots of small businesses. Especially creative based businesses, because they move so fast.
[00:10:33] Sharon: So transactions can mean how you license your work out into the world. What are the terms and conditions that support you giving access to, let’s say it’s a digital course, or let’s say it is a manual or a book or Whatever it might be, what are the terms and conditions of how that stuff can be used out in the world?
[00:10:57] Sharon: That’s transactions out between you and your clients and customers. Transactions in primarily means who participated in creating the work that you’re selling. Because unless it was somebody who works for you and gets a W2 paycheck at the end of the year, then they’re not your employee and you probably don’t own the rights and the work that they create.
[00:11:18] Sharon: And so you need a transaction. In the form of an independent contractor agreement, a trade, some sort of assignment, intellectual property assignment to make sure you actually own all the rights to the intellectual property that make it into your product or your service. So that’s the triangle. And that’s how we like our clients to think about assessing the opportunities and then also the legal due diligence that goes behind protecting their assets from an intellectual property perspective.
[00:11:50] Matt: I love it. It is simple and I drew it out here and it is clear. It is a great way of breaking it down. I have, Sharon, I’ve not had anyone break it down that clearly. It’s
[00:12:01] Sharon: helpful. And really any business, it really scales down or up any size company. So I think that you need to think about all three of those points of the triangle in your business and get the right advice from your legal advisor about You know, do we have these things?
[00:12:17] Sharon: If we do, how do we protect them? How do we monetize them and turn them into income for the business?
Protecting Your work with Copyright
[00:12:23] Matt: Great. Great. I want to spend a little bit of time, actually, probably a lot of time on the content piece, the content and copyright. Okay. Let’s just start from the beginning. If I just put a copyright, you know, my company is SiteLogic.
[00:12:36] Matt: Copyright SiteLogic in the year. Is that enough to protect me? And what I went out there with that disclaimer, whatever.
[00:12:45] Sharon: It’s a fair question. And, you know, I can’t give legal advice. I can just educate in our conversation here. So your mileage may vary if you’re listening to this. And so talk to your own legal advisor.
[00:12:57] Sharon: There are multiple strategies involved in protecting your copyright. You do, if you create an original piece of work, you as the creator do own copyright in it from the time you create it in some tangible form. So if you were an artist, it would be from the time the brush hits the canvas and you complete the work.
[00:13:14] Sharon: If you were a software designer, you know, when your code is finished, any creative work belongs to its author. At common law, if you own copyright in it. Now, if you happen to be a creator who’s employed by an, an organization, then you’re not personally going to be, you may be the author, but you’re not going to be the owner of the copyright because your employer will be, if you’re a contractor or a freelancer, then the parties have to agree in writing who will be the owner.
[00:13:43] Sharon: So how do you protect it? A legend and a copyright notice are. Great starting points. They’re free. Anyone can do them. You can standardize them and put them on all your assets consistently. And when you need to use a copyright notice to let the world know that you are claiming proprietary rights in this work, then yeah, the copyright symbol, the year of creation, and the name of the copyright owner.
[00:14:10] Sharon: And. Uh, the question of who the copyright owner is just depends on if it’s an employer, employee, you know, relationship, if you are the actual author and owner. So again, seek counsel about that, but that’s your first step. It’s universally available and accessible and everybody should be considering where and whether to put copyright notices on their assets beyond that though, if you are ever in a situation where you need to pursue a copyright.
Registered Copyrights
[00:14:40] Sharon: Infringement matter, there are certain mechanisms that you can only take advantage of under the copyright laws. If you have a federally registered copyright, for example, you actually need to file a lawsuit against somebody against copyright infringement for copyright infringement. I mean, you need to have a federally registered copyright to bring that lawsuit.
[00:15:02] Sharon: Also, if you don’t have a registered copyright, at the time somebody infringes your work, then you won’t be entitled to statutory damages. You would have to actually prove your actual out of pocket damages and you’d be limited to recovery there. So copyright registration is inexpensive insurance for preserving your right to recover copyright Attorneys fees, statutory damages.
[00:15:31] Sharon: It can feel like a drag to slow down and submit that paperwork, but, you know, work with a legal advisor who understands copyright law, maybe have them do the first few for you if your resources are limited and learn the process. And, you know, amongst all the IP protection work that we do in a day out basis, it’s the one I think that’s could be the easiest for an everyday business person, even if they’re not legally trained to learn how to do.
[00:15:57] Sharon: You know, and then there is digital representations of your work on the internet. In addition to suing for copyright infringement, which is a last resort option for just about any entrepreneurial company, let alone a small business, it’s just too expensive. So it’s not going to be a practical option for you.
[00:16:16] Sharon: But if you see your work out there. Online and it’s been infringed upon their, the digital millennium copyright act DCMA has what’s called a takedown process, which enables you to contact the internet service provider who has that website hosted and let them know that there’s an infringing piece of content on their site and demanding that they take it down.
[00:16:40] Sharon: Wheels go in motion. Once that happens, they’ve got to take it down within a certain amount of time. They will notify whoever posted it unlawfully. And if that person then comes back and makes an argument that, no, this wasn’t unlawful, then you’re going, you’re going to have to duke it out with the person who put it up, but meanwhile, you’ve gotten the content taken down.
[00:16:59] Sharon: And it’s a very effective method against bad actors sometimes. So those are, I think, some basic considerations for how to tell the world. The work is yours that you won’t copyright in it. And some of the, you know, basic things you can think about doing to pursue infringement, if it occurs, the best way is to try to prevent it from happening in the first place.
[00:17:22] Sharon: But if, you know, there’s a lot of real estate out there on the internet and it’s a whole new world with artificial intelligence. And I know that’s one of the things, Matt, that we wanted to talk about too today. So we’ll get there whenever you’re ready, but that layers a whole other element onto the question.
[00:17:37] Matt: It does. And yeah, so I think anyone, you know, involved in YouTube is really familiar with DMCA. You know, it seems to happen often depending upon the music you use, the content you’re talking about, any representations, brands, or anything like that. You can get into some pretty tricky territory pretty quickly.
[00:17:55] Matt: Um, So yeah, that is very helpful. It really helps to understand the structure of things because as a course creator, you know, there have been times where I’ve noticed that a word for word course has popped up somewhere. Now, if it’s outside of the U S. Really can’t do anything about that.
[00:18:13] Sharon: So it gets trickier outside of the United States, just because of lack of cooperation and enforcement.
[00:18:21] Sharon: I mean, there are treaties between certain countries and the United States about this, but it can depend upon where the ISP is located in terms of takedown. But if the registration is a U S copyright registration, if the infringement is in another country, you have to decide whether the, the Whether you have the wherewithal financially the time and to navigate two different potential legal systems, and I can tell you as a practical matter, it’s going to be out of the range of most, you know, entrepreneurial companies,
[00:18:51] Matt: right?
[00:18:52] Matt: Right. Absolutely. Absolutely. But yes, as you mentioned. So this gets before we get to a I social media. You know, this whole thing gets very tricky because with social media, you can create content and someone else can share it, edit it, cut it, you know, make comments about it. And all of a sudden your content becomes someone else’s content.
[00:19:16] Matt: And then that content can become someone else’s content. I mean, this has got to make an incredible, Web of messiness. If someone wants to claim anything in this kind of a process.
Social Media and Creative Content
[00:19:29] Sharon: It is, it can be a combination of copyright infringement issues. If you’re actually lifting work and trying to pass it off as your own.
[00:19:37] Sharon: And that, you know, we might see that in the case of imagery more so than we would probably see it in copy or in. And perhaps video, you know, there are a broader set of issues on social media related to the content that’s used. And remember when you’re making commercial use of any kind of content, that’s advertising.
[00:19:57] Sharon: It doesn’t matter if you’re doing it in, on a billboard or in an Instagram post or in a Tik TOK video, so. Not only are we appropriating creative work for commercial purposes, which means there’s no fair use defense under the copyright law for us, but we’re also potentially misappropriating a brand belonging to another, we’re potentially misappropriating publicity rights of an individual.
[00:20:25] Sharon: And if this is a well known influencer, they may have their own claims based on using their likeness for. Promotional purposes. So it’s a multi layered challenge. It’s not only the intellectual property, which invokes trademark and copyright, but it’s publicity rights of individual influencers. And then you’ve got the whole music licensing issue that gets layered right over that.
[00:20:49] Sharon: Who owns the rights to the music? Are you stitching music together? From sources you’re not allowed to be stitching it together from. So, you know, my best advice there, I don’t know which big tech company coined this phrase, but just don’t be evil. I mean, create original stuff. Well, they
[00:21:03] Matt: coined it. Yeah.
[00:21:04] Sharon: Yeah. They coined the phrase, whether or not, you know, our behavior aligns with their slogans is a question for another day, but, you know, Vet your sources of content. If you are curating content that you didn’t create, be transparent about it. Get permissions. Um, be mindful of the purpose for which you’re using that content on social and be original, create your own content.
[00:21:31] Sharon: Or use the libraries that the social media platforms make available to you. If it’s, you know, a question of music in particular.
The Use of Fair Use
[00:21:40] Matt: You brought up something here and I think it would be important to address it before we go on. And that’s fair use. What is the principle of fair use and how does that apply to a creative agency or to a creator?
[00:21:55] Sharon: So I think the biggest thing to understand about the concept of fair use when it comes to copyright law is it is almost never going to save you. If you are in the business of creating content or using content, you are doing so for a commercial purpose. Fair use is a defense to a claim of infringement of copyright and it is meant to apply in limited situations like reproducing a work you.
[00:22:23] Sharon: For scholarship or for academic purposes or criticism, it is not meant for just because you see it everywhere on the internet and just because other people may be misappropriating it doesn’t mean fair use will apply to you when you utilize the same content, words, or pictures for your own benefit.
[00:22:43] Sharon: Purposes and 99. 9 percent of the time you’re doing so for some commercial reason, right? Ultimately at the end of the day, the goal is monetary. So fair use doesn’t apply to you. And so this is a show geared towards business people. So let’s be a little bit universal about it. Forget about fair use. It’s not going to be your friend.
[00:23:04] Sharon: It’s not going to put you on the right side of copyright law. And I know a lot of people don’t want to hear that, but, you know, if you’re preparing a lecture for a college class, then by all means, there may, you know, you can put some things in your slides that you might otherwise be prohibited from doing, if you’re going to write a.
[00:23:21] Sharon: A critique of a piece of work then by all means, but other than that, it’s fair. Use is really just not going to save you.
[00:23:29] Matt: Great points. Thank you for being very clear on that and providing that.
Learn Digital Marketing and SiteLogic Learning
[00:23:39] Matt: Hey everyone. This is Matt. And thanks for listening. Just a quick break in the middle of the podcast here to let you know, there’s a couple of ways that you can connect with us. The first is learn. sitelogic. com. That’s the learning site where you can see great. Courses on analytics, courses on digital marketing across paid search, SEO, multiple disciplines.
[00:24:02] Matt: And then also you can connect with us on slack, go to slack. If you’re there and look for us at endless coffee cup dot slack. com. Connect with us. I’d love to hear from you here. What ails you in the realm of digital marketing? Are there courses you need information that you’d like to hear, or maybe some past guests at you’d like to hear more from, thanks again for being a listener of the endless coffee cup, and I look forward.
AI, Content Creation, and Ownership
[00:24:34] Matt: So now let’s get to the big elephant in the room and that’s AI, you know, and this has been, I think, you know, a number of court cases. There’s a lot of, you know, everyone’s asking questions, but I think as a, you know, there’s a number of ways we could approach this, but as a creator, how do I protect my work from.
[00:24:55] Matt: If I, you know, do I have a choice of it being used in a, and what are there any avenues open right now to pursue anything like that?
[00:25:05] Sharon: Well, most creators who I talk to are in the agency marketing agency environment right now, and they are, you know, they’re primarily concerned about. Two things, which is who owns the inputs that go into any generative AI platform, or actually who owns the outputs?
[00:25:23] Sharon: How do you protect the inputs? So what do I mean by that? If you are a creative and you want to use a generative AI platform to perhaps get inspiration. Or producing an outline or a working draft or a concept, you’re looking for ideation and what you get an output out of the generative AI platform that you’ve chosen to use if it’s confusing.
[00:25:50] Sharon: If the output is confusingly similar to Original piece of content that somebody else owns the rights to, and you adopt it, you’re a copyright infringer. You may not have been a knowing copyright infringer, but you’re a copyright infringer. So just know that you are assuming that risk if you are using output.
[00:26:13] Sharon: From a generative AI platform that is substantially similar to somebody’s original copyright owned work. That’s the first thing I think to understand the second fundamental thing to understand. And I think most people are aware of this or tangentially aware of it, but it’s worth repeating that the Copyright Office’s position.
AI Works Cannot Be Copyrighted
[00:26:34] Sharon: In the United States and just everywhere in the world I know of today is that work that is solely machine created out of an AI platform cannot achieve copyright protection or registration. So. Remember that whatever work that gets generated out of these platforms, you won’t be able to protect it ultimately, if you implement it.
[00:26:58] Sharon: So aside from the question of, are you infringing on somebody else’s copyright? Can you protect it from somebody else infringing on it, you know, against you? The answer is no, you cannot. The interesting question is what happens when, and this is a typical scenario. I used AI for inspiration. An initial draft of something that I then as a human went in and edited, polished, added to.
What about AI Plus Human works? Can they be Copyrighted?
[00:27:23] Sharon: So now you have a work at the end of the day that is a combination of AI created. Work and human created work. What’s the copyright ownership status of that? Where we are there is sort of a split the baby situation. The best case that is, is one of a graphic novel artist out of New York city last year, who successfully registered a graphic novel containing.
[00:27:50] Sharon: Illustrations from Mid Journey, which she was very transparent about the fact that she had used Mid Journey. She credited Mid Journey on the cover of the piece, and she submitted a copyright application for the entire work. Pictures, words, layout, and she achieved a registration. And then the Copyright Office learned that the illustrations had been generated by Mid Journey.
[00:28:13] Sharon: And they canceled her copyright registration. So she got a copyright counsel involved and who appealed all of this. And the end result was, and where we are today still is, if you have a combined work, you can still own copyright in the human aspects of copyright. The work. So her words, her arrangement of the illustrations, she could own copyright in those elements of the finished work.
[00:28:40] Sharon: She could not own copyright in the illustrations themselves. So I think that’s a great analogy because at the end of the day, most creative work involves multiple layers of copyright. And when you think about it, if you’re a marketer, you’re Some of it was your original, you might use stock photography to embellish it.
[00:29:02] Sharon: That’s somebody else’s copywritten work that you acquired, I hope, acquired a license to use. Maybe you used a videographer and they contributed original work, etc. So this idea of layers to the work is not new in a creative space, but that’s currently where we are in terms of what do you do when it is used as a tool to create part, but not all of the finished product.
[00:29:23] Matt: Right. Because what you described is like 99. 99 percent of the advice out there, which is do the inputs, do the editing, and now you’ve got your finished product. And that’s all the advice that’s out there. So wonderful to put that together. And so the words are still, What you’ve co created is still eligible for that, for that copyright.
[00:29:49] Matt: For
Copyright Protection for Course Creators
[00:29:51] Sharon: example, if you were to, if you were to submit a digital course for copyright registration. Let’s say it includes, um, videos. Let’s say it includes maybe some audio learnings, a workbook that’s downloadable, and maybe a couple of presentation decks. So if AI generated some of that stuff. Like the, the visuals for the PowerPoint presentation, but not the words, or if it created illustrations or copy for the workbook, but not the other, you’d have to disclaim that AI generated stuff in your copyright application because you have no right.
[00:30:31] Sharon: To own the copyright in that. And then your rights would be limited to whatever human created elements had been included in the finished work.
[00:30:40] Matt: Okay. This is where we’re, do you have to prove what’s human and what’s it? So if I use it,
[00:30:47] Sharon: if you were ever challenged by either a copyright examiner or a third party, yeah, you’d have to be ready to prove it.
[00:30:53] Sharon: Does the copyright office, they’re getting savvier and asking more questions. So you might get a call from the copyright reviewer. Yeah. Who’s in the midst of the application process. We have not had that experience at my firm yet where anybody’s reached out to ask us, but I can see us heading in that direction where they either update their process so that you’re certifying on the application itself when you submit it that there’s no AI generated.
[00:31:21] Sharon: Words, pictures, or other content in the work you’re submitting, or they’re, you know, creating new forms to account for that. But, you know, I like to always say the technology leads, it moves at the fastest speed. Business will put on its sneakers and chase after it. And usually, you know, do a pretty good job of keeping not too far behind, you know, and then the law.
[00:31:45] Sharon: And policy sort of sweep up the mess that’s left behind and figure out how to create the infrastructure for dealing with it on an ongoing basis. So we’re still kept the legal profession and the regulators are way behind the business use cases with, you know, AI and you are all behind the technologists themselves, and it’s never going to change.
[00:32:06] Sharon: That will always be. Well,
AI, Laws, and the Judicial System
[00:32:09] Matt: it seems like the response that you described, it seems to be happening in a very, you know, I won’t say fast, but you know, a judiciously expedient manner to, to come back within a year and, you know, and give some advice or it seems as though there is some response.
[00:32:30] Matt: It’s not like we’re, you know, it’s been two years of silence that, you know, on the subject, that there is some precedent, there is some best practices, you could say that, you know, that you outlined here, so it doesn’t feel like it’s that far behind, but I think it’s more the anticipatory of, of what’s coming next and how we’ll deal with it.
[00:32:51] Sharon: Right. Yeah, I think I can understand that perspective. And I will say, you know, to support what you just said, policymakers are moving a lot faster on how to address AI, including the intellectual property implications of AI, then they have moved to address data privacy, for example, which is a huge issue in the marketing world.
[00:33:12] Sharon: Marketers handle tons of data and we don’t yet have any federal standard in the United States about how to deal with it. I feel like we’ll see some policymaking on AI before we will see it on data privacy, and maybe one will accelerate the other. That’s my hope anyhow.
[00:33:29] Matt: I, you know, we could probably have a whole nother conversation on that.
[00:33:32] Matt: I just, you know, we recorded earlier a conversation with a European company that does analytics and their completely different approach to privacy and data privacy and how they handle data is refreshing to hear. But yes, in that area, we are so far behind. And, you know, when I have political campaigns texting me.
[00:33:54] Matt: On my phone and I did not give my permission for that. And it’s the politicians doing it. That tells me everything I need to know about how soon it’s going to be addressed.
[00:34:04] Sharon: Well, you know, I mean, the United States is much more intent on taking a state by state approach so far when it comes to date, which means that we don’t have any harmonization.
[00:34:14] Sharon: That’s not true. Like. In Europe, for example, they’re very unified in their front and nation by nation, they’re internally unified. So it’s just a different way of looking at it. But yeah, I, they are taking a much more conservative stance on AI as well as they are on data privacy standards in the European union, for example.
[00:34:35] Sharon: Then they haven’t been, and, you know, and Canada is a little bit, is more, being more conservative about this as well than the United States.
[00:34:42] Matt: Yeah. It’s interesting observation you brought up. I, that’s a, it’s funny that they are working more on copyright than privacy. So we’ll, okay, we’ll go with that. Well, let me, and this might be getting in the weeds a little bit.
[00:34:57] Matt: So if, and I’ve seen more and more people creating AI generated media and working through that. And you gave a great example of the graphic novel where the images are not protected. So now, you know, if someone went to make, you know, as an AI artist or an AI producer, is none of that protected? Or, you know, is this just still the wild west of, you know, if this is where you want to go with, this is the, this is what you have to deal with for now.
The Danger of Being an AI Artist
[00:35:29] Sharon: I think you, if you are somebody who wants to create Exclusively or primarily using AI generated assets, you are going to have to get comfortable with the fact that there’s going to be a very weak ownership position in the output. And you also have to be comfortable with the risk that you’re assuming.
[00:35:53] Sharon: That the output you’re using and incorporating into your stuff might be in conflict with the copyrights of another person or organization. So, you know, I drive at your own risk is what I like to always say. And I’m not here to advise. I’m just saying that I’ve been doing a lot of presenting on the issue of AI and I title my session usually.
[00:36:19] Sharon: Balancing risk with opportunity, because that is really how I think about it. I it’s for every individual business person, creator, artist, whatever you consider yourself to be primarily to decide whether the risk assumption is worth the potential upside and to be informed about what those potential risks are.
[00:36:38] Sharon: And if you’re informed and you willingly assume then, you know, then you make your decisions accordingly. But I think anybody who’s banking on creating. Wealth in a portfolio of work that has exclusively been AI generated. As least for the short term, I’m going to have a hard time. No, I’m not. And it’s not to say they can’t extract some profit out of doing it because clearly we’re seeing, I mean, all you have to do is look in your email inbox and you can tell which crappy emails, excuse the descriptor, but which bad emails have been AI created and, you know, look like junky content.
Innovation and Art
[00:37:14] Sharon: And so. You have to ask yourself what the limits on the effectiveness of that is going to be, and also ask yourself, you know, what does that mean for moving art and culture along if we are simply just pressing buttons and, you know, I’m getting a little philosophical versus legal now, but I’ll take it.
[00:37:32] Sharon: You know, we’re about innovation and the United States, at least I feel like we are, or should be, and I’m an IP lawyer. So obviously innovation matters to me. The work that comes out of AI as inspiration, of course, use it as perhaps a concept, but be original, you know, it should be a tool and it should be freeing you up in the marketing space specifically.
[00:37:56] Sharon: We’ve had a lot of conversations about this. It should be freeing you up. From the work that is not very profitable or particularly stimulating and freeing you up to do the things that either light you up or that you have much higher margins on, that is the proper role. I think of an AI tool in business right now.
[00:38:16] Sharon: And so if you use it with that perspective in mind and that mindset, then I think that you’re going to be, You know, proactive and careful about the way you assess risk along the way.
[00:38:27] Matt: Couldn’t have said that better. That is a great view of it. Yeah. I’ve seen this in so many different areas and I think you’re dead on that.
[00:38:35] Matt: I think some people have forecasted with AI is a rise in the average and a rise of average stuff or mediocre to average stuff from music streams on Spotify. That are AI generated. I’ve even seen now in my stock photo site, there’s AI images and you know, now I’m wondering, well, I still have to pay the same amount for an AI generated image as a non AI, and I have a problem with that.
[00:39:04] Matt: Actually, I never
[00:39:04] Sharon: thought about that part of it, but yeah, you’re right.
[00:39:06] Matt: Yeah. I still have to pay the same amount and now I’m learning that’s not protected. That’s a whole nother issue. I am going to make a phone call to Adobe here, but I don’t think it’ll go anywhere. I agree. I have found myself excluding AI images.
[00:39:22] Matt: If I’m going to pay. And that copyright, I am not going to use AI because it, and some of them, I say are good, but yet you can spot them. There, there’s a distinct look to it. That is just different from what.
[00:39:36] Sharon: Each of the tools have their own vibes. I mean, some of them are a little bit spooky, you know, spooky eerie, but it could be the inputs that are going into, you know, I mean, prompt engineering is going to get more and more sophisticated as time goes on.
[00:39:49] Sharon: And so the output is going to look more human, like, and as these technologies. continue to increase their data sets and train, right? The output is going to look more human generated, but it’s going to be a long time. According to the technology people who I talk with, they, nobody has really taken a stance opposite this.
[00:40:08] Sharon: They, the machines will get faster in terms of their ability to duplicate the things and patterns of humans, but it’s going to be quite a while. And I don’t, I don’t know. I don’t know what will happen in my career or not, but before. The human guardrails are going to be unnecessary. We still need, we need the human perspective.
[00:40:29] Sharon: We need the human oversight, the human strategy and innovation. This, these things are tools. And so they’re meant to be additive. Or helpful, I saw Sam Altman’s quote about a week or two ago, about 95 percent of what marketing agencies do now will be done by AI for free and instantly, and I don’t believe him.
[00:40:54] Sharon: And 1st of all, and 2nd of all, I don’t think he understands what marketing agencies really do. Um, and I say that cause I’m close to agencies, yes, but also because I think that we’re underestimating the importance of human curation, judgment, and, you know, again, guardrails as a lawyer, that’s important to me, guardrails are important and creating the end product and putting it out into the world.
[00:41:21] Sharon: So we’ll see. I mean, you know, I don’t have no crystal ball. I just, I see what I see and that’s the way I look at it right now today as we’re talking.
[00:41:30] Matt: Well, it’s a complete D evaluation or devaluation of human innovation and creativity, you know, that a machine can excel a human at creativity. I just have a big problem with that.
[00:41:43] Matt: And the problem with that view, because honestly, I, you know, from what I’ve seen also listening, it moves up the average. And you know, we will always have the late night TV commercial. You know, we will always have the spam and AI has proven it’s good at adding to the spam. It’s good at adding, as you said, to, to below average, terrible emails.
[00:42:06] Matt: It’s making the
[00:42:06] Sharon: middle a lot fatter right now. It’ll get better at that. I do believe that part of it,
[00:42:12] Matt: but it’s not
[00:42:14] Sharon: now it’s not
[00:42:15] Matt: better now. No. And then you’ve got your top tier of creative talent. That, you know, when a human is involved, it creates something that I, I don’t think machines will be capable of because they are ultimately copying what we’re doing,
[00:42:29] Sharon: right?
[00:42:30] Sharon: Yeah. I mean, there’s a question of how nimble, you know, you can be when you’re not reacting to another human or situation in real time, right?
[00:42:37] Matt: Yeah. Absolutely. Absolutely. There, there is a case for serendipity. There is a case for, you know, do you come up with your best ideas alone? Or do you come up with them when you have other people around that you can work through a concept?
[00:42:52] Matt: There’s a lot of dynamics there that I’m not sure can be reproduced.
[00:42:56] Sharon: Yeah, time will tell, right?
[00:42:58] Matt: Yeah, absolutely. Well, Sharon, I just had a couple other questions before. If you’ve got the time, I’m just, like I said, I’ve got a bunch of questions about this. This is
[00:43:07] Sharon: all
Brand Protection: User-Generated Content
[00:43:08] Matt: right. Businesses. And I mean, this could go into any, you know, whether agency or creator, user generated content, when people create things about your brand, your company reviews, what are some of the complexities around, um, How you can adopt or use or reuse user generated content,
[00:43:29] Sharon: right?
[00:43:31] Sharon: So I think it’s a function of how much disclosure are you giving as a brand about how you might use content if it’s put on your platforms. That’s to start with whether or not you follow the rules regarding incentivized content. And we’re seeing huge problems from the FTC’s perspective right now about reviews.
[00:43:57] Sharon: This is a compensated review. Is the brand suppressing bad reviews? Is it only compensating for good reviews? You know, are you getting a different pathway to interaction with the client? With the brand, I mean, depending on what kind of a review you submit. And those are all user generated content. But there, the issue is, are you disclosing to the public when you’re using the reviews that they were, you know, part of a compensated system.
[00:44:25] Sharon: So there’s, there are the disclosures and then there’s, there’s not too many copyright issues, Implications of repurposing content when it’s a review of your own product, but it is advertising. You can’t put any content out there or allow any content to remain on your platforms that is misrepresentative of your product or makes false claims about your product regarding ownership of content.
[00:44:51] Sharon: In general, I would say if it’s on your platform, you may not own the copyright on it, but you certainly have a lot of control over how it’s presented, at least on your platform. If it’s about your brand and it’s on the post, you know, it’s on the creator’s internet or social media accounts, then I think your options tend to be limited to, are they saying something untruthful?
[00:45:12] Sharon: Are they using an image of our product that we didn’t allow them to use that kind of thing? So I think those are the starting points and it’s a cross section really of trademark and copyright considerations, as well as truthful advertising rules and complying with those, whether it’s reviews, sweepstakes or otherwise.
Brand Protection: Influencer Marketing
[00:45:37] Sharon: And then influencing influencer marketing as a whole separate discipline. And there’s lots of things that play there regarding content ownership, use rights, republication rights. Can the brand reuse the content the influencer has created on their own website or in a direct email campaign? Those things tend to be contractual.
[00:45:58] Sharon: So that’s it. There are many layers to this, but I think the bottom line principles, you know, that I, your listeners should probably take away is that disclosure is critical, ask yourself what your end business goal might be at the end of the day, is it to own the content really? Or is it just to make sure you’re.
[00:46:15] Sharon: Product is not cast in a false light, or your brand’s not portrayed in a way that doesn’t keep with its standards. And if those things are true, then what legal recourse might you have under the copyright, the trademark, or the publicity rights or advertising rules?
[00:46:31] Matt: Fantastic. Oh, Sharon, I’ve got to tell you, this has been probably, you know, I’m familiar with a lot of the concepts, which you probably run into with marketers.
[00:46:40] Matt: We’re familiar with the concepts, but to have them explained well is really hard. That’s a loaded
[00:46:44] Sharon: statement. We’re familiar with the concept. I like it. We’re familiar with the concept. I was just in court for that yesterday. I’m familiar with the concept.
Thank you for listening to the Endless Coffee Cup podcast
[00:46:55] Matt: Oh, thank you so much for coming in and Sharon, I would love to invite you again, because I think another conversation about contracts about maybe trademarking brands would be incredibly helpful.
[00:47:07] Matt: You’ve done, you’ve been so amazing and explaining these concepts so accessibly and so simply. This has just been a wonderful conversation. Thank you for your time.
[00:47:17] Sharon: Thanks, Matt. Enjoyed myself a lot. I appreciate you having me on today.
[00:47:21] Matt: Oh, thank you. And thank you to your listener for spending another hour with us and hope you had a couple of cups of coffee through this.
[00:47:28] Matt: If not, Hey, please, if this was helpful, subscribe, I’d love to hear from you, leave a note on our show page. And I will also have links to Sharon, Sharon, by the way, I’ll just give you a chance. Where can people find you? If they’ve got more questions and would like to look into maybe trademarking some of our copywriting, some of their content.
[00:47:48] Sharon: Yeah. Thanks, Matt. So you can find us at legal and creative. That’s a and D legal and creative. com. I’m very active on LinkedIn. It’s Sharon Torek, T O E R E K. Or if you’re an agency, check out the Innovative Agency. It’s our weekly podcast on innovation in the marketing agency world. It’s not a legal podcast, but we just talk about all things marketing related.
[00:48:11] Sharon: And so love to have you there as well.
[00:48:14] Matt: Fantastic. Thank you. And dear listener, I will tell you, follow up on those. I don’t know about you, but I have enjoyed this conversation and. Man, this gets me motivated to get a little work done and start looking at some of my own stuff. Sharon, thank you so much.
[00:48:31] Sharon: Thanks, Matt.
[00:48:32] Matt: And thank you to your listener. I look forward to our next copy and conversation at the endless copy cup podcast.
[00:48:43] Matt: You’ve been listening to the endless coffee cup. If you enjoyed this episode, share it with somebody else. And of course, please take just a moment and rate or review us at your favorite podcast service. If you need more information, contact me at sitelogicmarketing. com. Thanks again for being such a great listener.
Featured Guest:
Sharon Toerek
Sharon Toerek, Founder, Toerek Law
Connect with Sharon on LinkedIn: https://www.linkedin.com/in/sharontoerek/
The Innovative Agency Podcast
