Generative AI: Media and Entertainment Considerations

May 1, 2023 - The future is now. Generative artificial intelligence ("AI") is being used to generate new content, including text, images, animation, video, software code and music.  Although AI itself is not new, it has come into sharp focus in recent months, accelerated by the availability and widespread adoption of user-friendly programs such as ChatGPT¹, DALL-E, Stable Diffusion/Dream Studio, Midjourney, Jasper and CopyAI. The only thing that seems to be outpacing the technological advancements AI is bringing on, is the complex array of legal issues it is creating. 

There are numerous content-related applications for AI among media and entertainment companies, depending on the type of company (e.g., publisher, video game company, creative agency, studio/production company) and the specific use cases.  Potential applications include generating ideas and content, fact-checking, editing text, moderating misinformation and content targeting and ranking.  Already, to name a few of the use cases among media and entertainment companies, we have seen publishers such as CNET using AI to assist in the writing of certain content² and BuzzFeed embracing AI to enhance and personalize certain types of content offerings, video game creators such as Naughty Dog using AI to create the environment for the highly popular “The Last of Us” video game, creative agencies using AI for different content creation, and entertainment companies adopting AI technologies to augment visual effects, preserve and colorize film, localize content, alter actors’ facial expressions³ , age and de-age actors’ faces⁴, and generate synthetic human voices.  This article will focus on content (not code) generation applications and key U.S. legal considerations bearing upon them. 

The legal landscape surrounding the use of AI for content applications is uncertain and rapidly evolving; some have likened the current stage of AI to the early days of Napster.⁵ The use of AI tools involves legal and reputational risks that clients (and media and entertainment companies in particular) must carefully manage. We address below some of the legal and ethical considerations associated with the creation of so-called “synthetic media.”

• Intellectual Property and Confidentiality:
  • Copyright Infringement: Can AI-generated content (“outputs”) be considered a derivative work or implicate the right of reproduction?⁶ Is it infringement or inspiration? Providers of AI tools use data-scraping to train their AI models (“inputs”).⁷ To the extent that there is copyright infringement or that such data-scraping otherwise constitutes copyright infringement or a Digital Millennium Copyright Act violation due to the removal of copyright management information, how strong are the arguments that such uses are permitted under the fair use doctrine or an implied license?⁸ With respect to the fair use question, are AI outputs sufficiently transformative to be eligible for a fair use defense?⁹ A few closely watched lawsuits are expected to provide some clarity on these issues¹⁰ and the U.S. Copyright Office’s recently launched “Artificial Intelligence Initiative”¹¹ will examine the copyright law and policy issues raised by AI, including not just the scope of copyright protection in AI-generated works but also the use of copyrighted materials in AI training. Who is liable when the AI's output is deemed to infringe someone else's copyright? If an AI tool provider is found to have infringed third-party copyrights, could a media company using such a tool be liable for infringement as well? It bears mentioning that copyright infringement can be direct, contributory, or vicarious. To complicate matters further, some publishers and other content producers could find themselves on both sides of the AI usage aisle — as content owners seeking to be paid for the use of their content to train AI models and as users of AI tools to generate their content.¹² Finally, to what extent can content owners look to copyright law to protect against deepfakes, particularly where the AI was trained upon that content owner’s copyrighted work? ¹³
  • Copyright Protectability: The U.S. Copyright Office recently denied an attempt to register copyright in individual images created using the Midjourney AI tool.¹⁴  At the same time, the Office said that it “will register works that contain otherwise unprotectable material that has been edited, modified, or otherwise revised by a human author, but only if the new work contains ‘a sufficient amount of original authorship’ to itself qualify for copyright protection.”¹⁵ While this decision could be appealed, it provides directional guidance and suggests that the more human alteration and involvement is involved in the creative process, the more likely the creator will be able to claim copyright in the finished work. On March 10, 2023, the U.S. Copyright Office published guidance on the copyrightability of works created using generative AI.¹⁶ That guidance reaffirms that some amount of “creative input or intervention from a human author” is required.” But, of course, that begs the question: how much?
  • Trademark Infringement and Unfair Competition: In its lawsuit against Stable Diffusion in the United States District Court for the District of Delaware, Getty Images asserts, inter alia, that the inclusion in Stable Diffusion/DreamStudio’s outputs of Getty Images marks or visually degraded versions thereof give rise to claims of trademark infringement, unfair competition, trademark dilution and deceptive trade practices.Could media companies that publish such outputs have liability for doing so? Relatedly, to what extent may unfair competition (e.g., passing off) causes of action be relied upon to protect against deepfakes?
  • Right of Publicity: AI may be used to alter an individual’s voice and image, including through the creation of deepfakes, thereby raising questions about the extent to which an individual can control the use of their voice or image for new AI-generated content.  The actor James Earl Jones reportedly granted a Ukrainian startup a license of his voice, allowing the company to recreate his iconic Darth Vader voice using AI. The musicians Drake and The Weekend reportedly did not when a creator named “Ghostwriter” purportedly used AI to generate an entirely new song in the artists’ vocal styles. Depending on the nature of the AI use and whether the individual’s voice or image is recognizable, state right of publicity statutes, which exist in some, but not all, states and vary among those states in which they exist, may provide protection for the individual (and, in some states and under certain circumstances, the individual’s heirs) against use of the individual’s voice and image (in addition to potential copyright claims where the voice or image was taken from, or resembles elements of, a prior copyright-protected work).
  • Trade Secrets and Confidential Information:  A media company’s inputs into an AI tool may be used to train the AI tool’s model, thereby leading to the risk that those inputs could be included in outputs to a third-party user.¹⁷ Given that trade secret laws require that trade secrets be maintained in secrecy, the inputting of trade secrets creates a risk of loss of trade secret protection.  The inputting of third-party confidential information held by a media company could similarly run afoul of the media company’s non-use or non-disclosure obligations.
  •  Insurance Considerations: Media companies should ascertain the position of their Errors & Omissions liability insurance carriers on the use of AI and what pre-publication or pre-broadcast review processes their carriers may require.

• Regulatory and Compliance:
  • Computer Fraud and Abuse Act of 1986 (“CFAA”):  Does data-scraping by AI tool providers of sites whose terms of service prohibit such activities create the risk of claims under the Computer Fraud and Abuse Act, which prohibits accessing a computer without, or in excess of, authorization and carries criminal liability? If so, are there circumstances in which a publisher or other media company could be found guilty of aiding and abetting the commission of such an offense? The Supreme Court narrowed application of the CFAA a couple years ago,²³ but data-scraping, and in particular the manner in which it is performed, may still subject one to a CFAA charge and remains fraught with legal peril.²⁴
  • Data Privacy and Protection Violations: The use of data sets containing personal data by providers of AI tools to train AI models or as inputs by media companies to generate content implicates applicable data protection laws. Users of personal data for these purposes may be subject to substantial penalties²⁵ if they do not obtain that personal data in compliance with such laws.
  • Section 230 of the Communications Decency Act: The Communications Decency Act generally provides immunity for an interactive computer service (a content host) with respect to content posted by an information content provider (a content creator).  For media companies that host user-generated content, could the fact that hosted content is generated by AI affect such companies’ immunity under the Act and, if so, then under what circumstances?²⁶

As media and entertainment companies determine how AI can play a role in optimizing their content-creation generation processes, they should consider developing robust governance around the use of AI, hand-in-hand with responsible, self-regulatory codes of conduct²⁸ and best practices to mitigate legal and reputational risk and preserve brand safety.

Consideration should be given to adopting the following specific practical steps and guardrails:

• Identification of Use Cases and Risk Assessment:  Companies should identify the specific types of applications for which their employees and contractors could use AI in connection with the generation of content. Once these potential applications have been identified, companies should rank different types of use cases and categories of synthetic media based on level of risks. For example, publishing content that is being syndicated to third parties and investigative and other news content may be deemed high risk, such that a company prohibits the use of AI in connection with that content. As another example, companies should consider prohibiting the use of trade secrets and confidential materials as inputs into AI tools. Regardless, companies should strongly consider requiring any employees using an AI tool to utilize any settings or other mechanisms offered by that AI tool that allow the user to disable the AI tool from using such users’ chats to train the AI tool’s model.
• Tracking:  Companies should develop rights management system mechanisms for tracking the use of AI and any content generated using AI.²⁹ These tracking mechanisms should identify the AI tool used to generate the relevant outputs and include a copy of the AI tool’s terms of use/service posted on the date of use.  Such tracking mechanisms should also identify the role that humans played in generating the content, including the degree of human alteration.
• Auditing:  Companies should perform periodic internal audits of content to determine whether it was generated by AI tools in compliance with company policies.³⁰  
• Oversight:  Companies should consider designating content integrity personnel to oversee and monitor the use of AI, especially in permitted higher-risk use cases.
• Training:  Employees and contractors who generate content should periodically undergo training in the appropriate use of AI and related company policies.  Companies may want to further consider requiring their employees and contractors to certify that they have reviewed company policies regarding AI.
• Transparency and Disclosure:  Companies should consider identifying (e.g., by applying disclosures to) content generated using AI when publishing or otherwise disseminating or sharing that content.³¹This identification may specify the particular manner in which AI was used in connection with generation of that particular content.  As an example (and to help support the argument for copyright registrability), for content created using AI tools, companies could include explanations in the end credits detailing exactly how AI impacted the final work and how much the work was altered by humans.
• Contractual Restrictions and Terms of Use: Just as companies include restrictions in third-party contractor agreements on the use of open source software, companies should also consider restricting the use of AI tools without company approval by third-party contractors who create content.  Companies should develop policies related to the outbound licensing or assignment to third parties of rights in employee-created and contractor-created synthetic media. Companies should also review their website Terms of Use to ensure that they explicitly prohibit data-scraping of their websites.

The introduction of AI for creation of synthetic media is a potentially transformative moment for the media and entertainment industries, but carries with it significant uncertainties. As the landscape rapidly evolves, the implementation of robust governance and frameworks may help to mitigate some of the legal and reputational risks that media and entertainment companies face when deploying AI as part of their content generation processes.