GenAI and Copyright
Using GenAI can be risky
Both training and using AI services--especially GenAI-- can put you at risk for copyright, right to privacy, or right of publicity lawsuits. Rest assured that there are many ways that you can minimize the risk of assuming liability. These mitigations include an understanding of fair use, "substantial similarity", and what kinds of things have or haven’t been settled legally regarding the use of GenAI.
Fair Use
Uses of GenAI that fall under the fair use provision are protected by law. It's important to understand, however, that the principles of fair use aren't a checklist of things to be done. Rather, they are factors that are weighed holistically by a judge to determine whether a specific use falls under that category. Careful analysis of the fair use factors can help you make an educated guess about whether a use is fair and can help you assess copyright risks associated with that use.
Those factors are:
To better understand the principles of fair use, the BYU Copyright Licensing Office has extensive resources available to understand each of these principles and the legal subtleties of each.
Risk Factors
The table below outlines factors to consider when establishing whether or not the GenAI related activities warrant copyright infringement.
| Risk Factor | Effect | Example |
|---|---|---|
| Non-profit use | Lower Risk | Creating an image to put on the wall of your room |
| Educational use | Lower Risk | Generating text to use as inspiration for an assignment |
| Minimal distribution | Lower Risk | Sharing an image with classmates or friends |
| Moderate distribution | Higher Risk | Posting generated content online |
| Not knowing the source of training data | Higher Risk | Creating a work of art using an AI service that uses copyrighted pieces of art in the training data |
| Imitating a specific piece of work | Much Higher Risk | Trying to imitate Harry Potter |
| Imitating someone or their style | Much Higher Risk | Creating an AI imitation of Taylor Swift's voice and sharing it |
| Not following terms and conditions | Extreme Risk | Publishing content in a way that is expressly forbidden |
Substantial Similarity
Substantial Similarity refers to the degree of similarity between two works that is significant enough to conclude that one work may have been copied from the other. Whether or not this similarity is intentional, it is an important legal concept to be aware of. Because a GenAI service could produce something very similar to an already existing work, this is an important issue to consider. This standard is subjective as there is no set rule determining how much similarity constitutes what is “substantial”. Courts assess this on a case-by-case basis.
Right of Publicity
Another standard to consider when discussing infringement is Right of Publicity. This idea states that people have a right to their own name, image, voice, and likeness, and it is up to them to determine how those aspects are used. Even though there isn’t a federal law protecting this right, there are several states that have passed legislation in this category. For example, if you created an image that looked very similar to a celebrity, and used that image in an advertisement, that image could result in a lawsuit.
Training GenAI
Currently, it's uncertain whether copyright infringement applies when using other people's content as training inputs for your own models. It's possible that the fair use defense could apply, but it's difficult to know whether it applies without any core precedent, and none of the lawsuits surrounding this issue have gotten to that stage. A best practice is to only use data that you own when training AI models. If someone uses a trained model or service, and an output yields results that someone thinks violates their copyright, it's still unclear whether that liability would fall on the creator of the model or the user generating the content. Please be aware that this is a risk.
As the user of a service, it's safest to use services that use their own data for training. For example, Adobe Firefly, who owns all of their training data, is much safer than Midjourney.
Copyrighting your Work
The output from a GenAI service is not currently copyrightable. The United States Copyright Office does not deem the level of human authorship to be sufficient for copyright eligibility. That being said, if you create a base image using GenAI, and make significant additions or edits, those additions or edits could be copyrightable if they are sufficiently creative. The base GenAI image, however, would still not be copyrightable.
In addition, if a prompt for a GenAI service was long, complex, and creative enough to be considered a literary work, it could be copyrighted. However, the content generated by that prompt would remain unprotected.