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  • - We're gonna swap face here with Elvis

  • and here comes South Indian Elvis.

  • (Vivek laughing)

  • - [Narrator] This is Reface, an app that lets users

  • swap faces with others using AI,

  • and it's currently embroiled in a lawsuit.

  • It's one of dozens of AI related lawsuits

  • filed in the last couple of years.

  • - I'm gonna break down three

  • of the biggest cases at the intersection of AI

  • and intellectual property law.

  • Maybe the biggest issue facing copyright lawyers today is

  • whether or not works created using generative AI tools

  • are even protectable?

  • The case that illustrates this copyright conundrum

  • perhaps the best is Thaler v Perlmutter.

  • - [Narrator] In 2018, scientist Dr. Stephen Thaler

  • applied for copyright protection

  • for this piece of art, which he said was produced

  • by a generative AI system he created.

  • The Copyright Office rejected his application

  • saying creative works must have human authors

  • to be copyrightable.

  • - And so what the Copyright Office is basically saying is

  • that we're not gonna extend copyright protection to works

  • that are made by machines.

  • - [Narrator] Thaler sued over the rejection and lost,

  • but he didn't give up.

  • He appealed the ruling and a decision is expected

  • by the end of this year.

  • The Copyright Office declined to comment.

  • - In order to receive copyright protection, a work needs

  • to be original, fixed to a tangible medium,

  • and have human authorship.

  • This element of human authorship is not really disputed,

  • discussed or litigated very often.

  • However, there was a case that got some headlines

  • that did focus on this element of human authorship.

  • - [Narrator] In 2011, wildlife photographer David Slater

  • set up and left his camera unattended

  • and a monkey named Naruto allegedly took photos

  • of himself with Slater's camera.

  • - PETA argued that Naruto, not Slater,

  • should be the lawful owner of the copyright.

  • Ultimately, the federal court said

  • that photograph lacks human authorship

  • because Naruto is a monkey.

  • - [Narrator] And the rise of AI raises new questions.

  • If a human edits artwork made by AI,

  • can that count as human authorship?

  • - Maybe The first case

  • that actually spotted this copyright conundrum involves

  • the artist and computer scientists named Kris Kashtanova.

  • - [Narrator] Kashtanova used the generative AI

  • tool Midjourney to create the artwork

  • in their graphic novel.

  • They said they personally edited some

  • of the artwork using Photoshop,

  • but the Copyright Office said the edits were too minor

  • to be entitled to copyright.

  • The Copyright Office also said in its letter to Kashtanova

  • that if there were a sufficient amount

  • of original authorship made by a human

  • that could warrant copyright protection.

  • Kashtanova's attorneys said in a statement

  • that the Copyright Office's decision was incorrect

  • and is unsustainable.

  • - So why is all of this such a big deal?

  • Without the ability to get a copyright registration,

  • people who are making work in this way

  • will not be able to meaningfully commercialize that work.

  • I think either a federal appellate court is going

  • to expand on the definition of

  • what human authorship means,

  • or I think Congress will be lobbied to a point

  • where they will need to define again, the meaning

  • of human authorship as it may be relates

  • to contemporary society.

  • Why is the intersection of AI

  • and right of publicity laws important right now?

  • AI as a technology has made it exceedingly easy

  • to co-opt, or repurpose somebody's name, image,

  • and likeness for some kind of commercial purpose.

  • ♪ I came in with my ex like Selena to flex

  • Yeah, I mean, that sounds like Drake.

  • - [Narrator] But it isn't.

  • It was made by an anonymous producer named Ghostwriter

  • who used generative AI tools to fake Drake

  • and the Weekend's Voices.

  • Ghostwriter's song hard on my sleeve had 600,000 plays on

  • Spotify before it was pulled down following a copyright

  • infringement complaint from Universal Music Group,

  • and it isn't the only example.

  • Kyland Young a former contestant on CBS's Big Brother.

  • - This is a fun opportunity.

  • We come back to more friends.

  • - [Narrator] Sued Neocortex, which owns the app Reface

  • we saw earlier.

  • He said his face was in the app's library for paying users

  • to edit without his consent,

  • which violates his right of publicity.

  • Young's complaint says that the use of his image

  • for commercial benefit is the core of the issue.

  • - One example of this is a 1992 case involving Samsung.

  • When they ran this ad.

  • I probably don't even have to tell you who that is,

  • and that is the problem.

  • - [Narrator] The robot in the print ad is meant

  • to look like Vanna White, a host on the game show

  • "Wheel of Fortune."

  • In 1992, she sued Samsung for violating

  • her right of publicity,

  • and the court agreed.

  • That's the question that Kyland Young's lawsuit

  • is wrestling with.

  • - I think Neocortex is going to have a very difficult time

  • defeating this claim by Young.

  • - [Narrator] Reface said Young's images are no longer

  • available in the app.

  • The company argues that

  • because the app's output is derivative,

  • the Copyright Act preempts Young's right of publicity claim.

  • - Most of the actual lawsuits relates

  • to this thing called training data.

  • - [Narrator] Or the material used to create large language

  • models that power generative AI systems like ChatGPT.

  • One of the first cases involving training data was filed

  • by a group of artists in 2023.

  • - What these artists are saying is

  • that their copyrighted works,

  • which live in digital form online, are used

  • and scraped to train the large language models used

  • by Midjourney, Stability AI, and the other defendants.

  • Since these artists never licensed their work

  • to these defendants, they argue that that use

  • of their copyright work violates their copyright rights.

  • - [Narrator] They also argue that the artwork produced

  • by these AI systems should be considered copyright

  • infringement because of how similar

  • they look to the originals.

  • - Substantial similarity is the legal standard used

  • by courts to determine whether

  • or not copyright infringement has occurred.

  • Courts will usually focus on the similarities,

  • not the differences,

  • and they'll focus on the similarities

  • of the protectable elements among each work.

  • - [Narrator] Like the subjects in this Getty image

  • and the angle of the camera, Stability AI didn't respond

  • to requests for comment.

  • - I think that at the end of the day,

  • the training standing alone is probably going

  • to be okay, and here's why.

  • There is a case from a few years ago involving HIQ

  • and LinkedIn, HIQ was developing some recruiting software

  • by scraping publicly available data from linkedin.com,

  • and what the court ultimately said in

  • that case was scraping publicly available

  • information is okay.

  • These platforms are still going to have to ensure

  • that the output does not constitute copyright infringement.

  • - [Narrator] There will likely be more of these copyright

  • issues, especially when OpenAI releases its text to video

  • tool Sora to the public.

  • - You can imagine now if somebody wants

  • to create a cityscape of like Tokyo or New York City

  • or Paris, right, they might end up

  • actually creating modified

  • but recognizable versions of famous trademarks.

  • - [Narrator] OpenAI declined to comment.

  • The law is just beginning to catch up

  • to the fast advancement of AI.

  • - Technology in general moves very fast

  • and tests the bounds of the existing laws that we have.

  • Oftentimes, it's these types of technologies

  • and shifts in technology and culture