Challenge,  On Writing,  publishing

AI Not Protected Under Copyright…

Decision Upheld on Friday…

Here in the States, and in different forms in Europe and other countries as well, all forms of AI generated art and text cannot be protected under copyright law and the Berne Convention and thus hold no copyright.

You can’t own it. No one does.

Last March the copyright office issued decisions on that, and a Federal judge on Friday stood with the copyright office.

This is an oh-oh of major proportions for any of you using AI for art or text. To own a piece of work, it must have human creativity.

You have an AI cover on one of your books and yet you agreed to the terms of service of Amazon when you put it up that you controlled and owned the rights to that book. Amazon discovers that you do not own the rights and your account can be shut down.

Oh, oh.

Same with text. You don’t own your story if you used AI text to create it or even a part of it. Even Kickstarter is forcing you to declare if you used AI in anything in a campaign and if you lie, you will get kicked off the site.

Notice I said lie? That’s what the laziness and theft from other authors and artists is causing some writers to do.

That’s right, if you are using AI art or ChatGPT before all this gets settled, you are stealing from other writers and artists and not paying them for their work.

As one site called it, there is a “lawsuit tsunami” against ChatGPT and its owner and creator, and not really a smaller wave against AI art programs. Basically the inventors are all claiming “fair use” as one excuse to go out and take author’s and artist’s work and use it for free. Lawsuit hell. And not a bit of it is settled yet.

But with the ruling on Friday backing up the copyright office that there must be a human creating the copyright, that stuck a bunch of indie writers in really bad spots. They don’t own what they are doing with AI and thus can’t license it to anyone who demands in their contracts or terms of service that they are the author and owner of the work.

Oh, oh…

I know you want to climb on board the shiny new toy, but by doing so you are stealing other writers’ and artists’ work. Just write your own stuff, license art so the artist gets paid.

And for heaven’s sake, please, please don’t tell me you have been using it in a letter or comment. I do not like thieves and I don’t want to lose respect for you.


  • Amy

    Thanks for keeping us up to date, Dean.

    This situation begs two questions: (1) how, as indie publishers, can we avoid unknowingly using AI-generated art if unscrupulous ‘creators’ don’t disclose it and (2) who is liable for fines if we do?

    On Kris’s blog about AI-generated art back in April, I asked about how to avoid accidentally using AI art:

    Kris said, ‘If anything says digitially generated or has AI listed, I don’t use it right now. Also, I’m trying to purchase stock art that was put on the site before 2021.’ [According to my web searching, Dall-E appears to have been the first AI-generated art programme released to the public, in Jan 2021.]

    I’m sticking to that pre-2021-upload rule. I use iStock, where upload dates are listed, but not all royalty-free sites show them.

    In October 2022, Getty and iStock were reported as banning AI-generated images from their sites. But I just did a search on iStock of ‘AI generated’ and it produced, among other things, an image titled ‘Sliced avocado on bright pink background, AI-generated stock photo’, with two categories listed for it: ‘Stock photos’ and ‘AI generated’. (‘m going to write to iStock about this.)

    So I think that shows the value of the ‘pre-2021’ rule, which I’m hoping will also protect us against contributors failing to disclose that they used AI to produce pictures.

    But if we do unknowingly use AI-generated art because a creator failed to disclose it to the stock company, what would our liability be? Obviously we’d have to take the book cover down, but would we have financial liability, or would that lie with the stock company?

    • dwsmith

      All that will be settled in courts. Just keep track (with paper) all art licenses and where they came from so if someone questions it, you have documentation.

    • dwsmith

      Actors are getting paid for the voice work. I know of no lawsuits with AI audio and the underlying product is still yours. It is just a different delivery form instead of a creation form.

      • Troy Lambert

        One of the reasons there are no current lawsuits with audio AI? There was a neat little clause in the Findaway contracts when Spotify took over that allowed Apple to train AI voices using any narrator voice loaded on Apple books from Findaway. Most of us missed it, until an astute gentleman found it and alerted everyone. A flood of authors and narrators emailed both Findaway and Apple and opted out of the program.

        Many too late, when their voices had already been used to train AI audio. At the same time, Apple paid some narrators (whose identities to this point remain confidential) to train their AI Audio voices for their program. So since they had a contract…

        There’s not a lawsuit there, but there are ethical concerns. Whether readers will care and protest or not remains to be seen. But authors, eager for cheap ways to produce audiobooks, are lining up for the program in droves (there are other ethical ways to use AI audio for audiobooks, including creating a clone of your own voice).

        • dwsmith

          Yes that happened, but compared to the problems of AI art and AI text, the audio folks mostly tried to do the right thing up to a point. At least some of them paid voice artists for their work. And that is being cleaned out, and yes, you can put your own voice in for your own books. Still expensive, but possible.

        • Kate Pavelle

          The idea sounded so fabulous from the author’s point of view! I was all raring to go. Then I noticed that they want to keep a non-exclusive, worldwide license to create derivative works, including translations. I kept a trilogy in on an experimental basis, because I am very curious, and because I know I won’t be springing for a human narration for that particular work. (My poor, sacrificial lamb.)
          I was feeling all kinds of conflicted, and I didn’t even know about the voice-training part. Thank you for fleshing out the picture! Let’s see how this experiment works out.

  • S. H. Miah

    Hi Dean,

    Do you have any insight into the copyright viability of much of the AI generated art that’s popped up on Adobe Stock recently? I see many nice science fiction art that would be perfect for book covers, but they’re classed as AI generated, yet Adobe are still licensing them.

    I assume someone has generated an AI image and then transformed it enough to class it as their own, but I don’t know the copyright behind that.

    • dwsmith

      There is no copyright behind it. It is public domain and you can sell public domain work if you get someone gullible enough to buy it instead of just taking it.

      • JR Holmes

        Let’s start with the disclaimer for all of us: IANAL and this doesn’t represent legal advice.

        There was the point that was missing from the main article itself. If AI generated writing or art has no owner and therefore no copyright, there would be no difference between using AI generated writing or art and existing public domain writing or art.

        Leaving aside the ethics of not paying cover artists (obviously a huge separate issue that AI generation has yet to honestly deal with), using AI generated images for your cover would be no worse than public domain art. And, assuming that you modified the art to produce your cover (a derivitave work), you could still claim copyright on the overall cover and meet the terms of Amazon or Kickstarter.

        • dwsmith

          JR, you are correct, of course, of the use of the public domain work. Creators of public domain work, for the most part, had their time. But for me I just can’t seem to divide out the theft side of AI art because I have so many artist friends. But if this does settle out on that side and AI still exists in some fashion or another after the legal issues, then your point is spot on the money IF terms of service of major stores remain the same. But only time will tell on that and right now is not the right time.

  • Amy

    Still thinking about this… What is the court that will make the final decision on this? And how long will it take to reach that court?

    If I were a young person wanting to be an artist, I’m not sure I’d be wanting to invest in going to art school until this threat to my prospect of making a living was no longer hanging over me.

    • dwsmith

      Amy, artists do art because they love it. Writers write because we love it. If your only goal is to make a living and you are afraid of some change coming, you are coming at this all wrong, in my opinion. This will settle out given time, one way or another. But the lack of copyright protection is here to stay. You use AI, what you create is not yours and you cannot license it. Very simple. So just don’t use it.

  • Kate Pavelle

    Brilliant, thank you! Great comments as well. I shot the link to Miranda, the company she works for often buys 3D rigs for gaming and alters them (saves time and money.) She wrote that on her instruction, the team already avoids 3D generated assets.
    I wonder how they can tell… that branch of creativity really gets a tech boost, and I am sure there are shades of gray.

  • Catherine

    This is great news! I’m not shedding any tears for those on the wrong side.

    That date trick is great for vetting art. I’m going to use that from now on. The sites are flooded with so much, it is hard to differentiate otherwise – especially with so many custom AI engines going right now. You can’t count on the work having that give-away Mid-Journey look.

  • Michael W Lucas

    While it’s well known that the law is an ass and courts can go wildly sideways: all this is obvious to anyone who knows anything about copyright. Human creation is a key part of the law. We’ve had big lawsuits about this in the tech industry, and it always comes down to “human creation.”

    I’m gonna echo Dean’s perennial recommendation for the Copyright Handbook. I believe in that book so much, I bought a second copy and one-by-one make my friends read it. If you must, put it on the back of the toilet and read two pages at a time.

    There’s a new edition coming in January 2024, by the way. The current edition is suddenly going real cheap. It might not be the latest and greatest, but it’ll definitely give you a decent grounding.

  • Keith West

    Another area where I’m seeing pushback against AI generated content is in reference letters. I write a number of letters every year for students going on to graduate programs in medical related fields, such as physical therapy school (by far the most students), med school, vet school, etc.

    There are a number of these academic programs that allow uploading of letters and other doucments directly to their website. Starting earlier this year, when I’ve gotten a request for a reference and log in to some of the sites where I upload the letter, I first have to check a box acknowledging I didn’t use any AI program to write any part of the letter.

    I find that some people are using AI to write reference letters for students entering medical fields to be disturbing.

    • Leigh Kimmel

      Interesting. I wonder if some of them view letters of reference as one of those routine drudgeries (especially if they’re getting a lot of requests), rather like a lot of people view writing thank-you notes, and see AI as a way to offload a grind onto a machine.

      One big thing that concerns me is how little understanding there is of the actual technology, as opposed to portrayals of computers and AI in media. For instance, try to get a coherent, technology-based answer to the question: “How is the machine learning from copyrighted material different from me learning writing/art from the study of copyrighted material?” A lot of non-specialists give answers based upon essentialist assumptions that come down to human cognition having a supernatural element, and if you press these respondants on it, they get huffy and snap back, “It’s just different,” as if the question were an affront.

      When one considers that the lawyers arguing these cases, and the judges who will be rendering the verdicts, often have little or no understanding of computer technology (the laptops, tablets and smartphones in their briefcases and pockets might as well be elven magic), things could get *very* interesting — especially if these early cases establish broader precedents that become awkward in future decades if Elon Musk’s visions of direct-to-mind interfaces and neurological prostheses come to fruit.

      Disclaimer: I am not a lawyer, a theologian (Abrahamic, dharmic or other faiths), or a software engineer. I’m just someone who occasionally writes cyberpunk and transhumanist fiction.

      • dwsmith

        Leigh, again focus on the copyright rulings here in the States and around the world following Berne. No copyright can attach if not made by a human. Really simple. There will not be many cases on that fact since the copyright office has issued rulings and the ruling has been upheld.

        The massive numbers of theft cases, on the other hand, are what is in the courts.

        My tingling spider sense is that ChatGPT gets shut down or slapped so hard they are no longer viable in business. But others will come along who might not take without payment or permission author’s work. AI is with us and will be used by the lazy and short-sighted writers who do not understand copyright, licensing, or the value in trademark. Besides, AI will only crank out mostly lifeless garbage in quality and story. Readers over time will help clear it out to a point as well.

        • Leigh Kimmel

          The day job’s got me on the road, and I’ve been thinking a lot about that.

          if it were just the first issue, of AI-generated text falling directly into the public domain so that it can’t be licensed out, it would be primarily a problem to the sorts of people who take AI output and slop it straight into a book-shaped thing a la what the old Verlag Dr. Mueller used to do with Wikipedia articles — with about the same quality. Most gurus of my acquaintence were telling their students to use AI text as a jumping-off point: brainstorming ideas, un-sticking a stuck story or article, looking at better ways to phrase a passage, rather than text that would actually be inserted unaltered into the finished product.

          The second issue, of lack of proper licensing in of copyrighted works, is more troubling, since it has the potential to taint everything it touches, however indirectly — but that’s not inherent in the technology, but rather a problem of how training data was chosen. Large language models are being used to study protein folding, and the training data for that would be the known facts of how protiens fold, which can’t be copyrighted. So there could be a market for AI models whose selling point is their careful selection of public domain or affirmatively licensed training data, so people could ask the magic genie for “ten ideas of things that could go wrong on a moonbase” with confidence that they wouldn’t be facing the legal or karmic repercussions of benefitting from IP theft.

      • Fabien Delorme

        Leigh, I am both a writer and an AI researcher, and I can guarantee you that the algorithms used to train those software do absolutely not work the same way than I do. Nothing at all in common.

        SF writer and computer scientist Ted Chiang wrote a brilliant article on that topic, called “ChatGPT is a blurry JPEG of the web”, you can google it and find it easily. It’s short, I’d recommend anyone interested in the topic to read it.

        • Leigh Kimmel

          Thanks for the cite. I’ll keep it in mind for dealing with people who can’t give a technology-based explanation, as opposed to assuming a “human essence” or issuing a huffy “It’s just different.”

  • Chris

    Without meaning to be crass this feels like a popcorn moment, when those of us who have avoided AI for all the reasons you mention, Dean, can maybe feel the tide turning in the right direction.

    I’ve read that the music industry is getting hit hard, too. I think you and Kris have mentioned that the music industry is perhaps a decade or so ahead of the writing industry in terms of effects and what writers can expect in the near future. I wonder if this is one of the few instances when they are running parallel?

    I appreciate you and Kris blogging about it.

    Thank you.

    • dwsmith

      Parallel, Chris, because AI did not exist as it does not much earlier for them.

      The copyright rulings here and around the world are the key things that will chart a path into the future. You will not be able to license your work to movies or games or anything if you don’t control the copyright of it. That really is the key ruling. The theft stuff will work itself out in some fashion or another over time.

  • Brad D. Sibbersen

    For those wanting to keep abreast of this, the Honorable Judge William Orrick has been hearing arguments. Search his name along with “AI art” or “AI suit” to stay up to date!

    • Erin

      Thanks for this, Brad. I just googled it and it looks likes the judge is inclined to dismiss the case which would set a strong precedent for other lawsuits against AI. We live in interesting times indeed.

  • Sheila

    Well. So much for those telling me I was stupid and “AI” was the way to write and make money. Guess I’ve gotten the latest laugh, at least.

    As for claiming “AI” generated work as being public domain, you can’t, to my understanding. Public domain covers works that were copyrighted and now have aged out, and since “AI” can’t be copyrighted, it’s not public domain, for sure. I’m betting it can’t be released under Creative Commons, either.

    Amazon by it’s own rules can’t allow anyone to publish “AI” works, as they must be provided proof of copyright registration when asked, and especially if someone claims stolen work. We acknowledge that we own copyright, or that a work is public domain, when uploading. That’s especially going to put a wrench in the works of those who are making “AI” notebooks, journals, guides, coloring books and that other nonsense, including covers.

    • dwsmith

      Sheila, you are flat wrong about copyright and Public Domain. Need to look that up. Aging out is only one way something hits the public domain. There are many, many others. Sorry.

      All AI work under Berne convention and in the laws of both EU and the States is now considered pubic domain without copyright protection at all.

      • Sheila

        Maybe so, but Amazon has rules about what can be considered publishable as public domain. It has to be significantly altered before they’ll take it, meaning enough new content has to be added — art, commentary and so on. I don’t see how “AI” stuff would be able to pass that test. And Amazon is the market where people look to make money this way.

        Still, firm rulings need to be made, and many sites where work can be uploaded, for sale or not (B&N, Amazon, Wattpad and so on), are going to have to draw a line somewhere. If we’re lucky, it will be on our side, and this “AI” stuff will go away.