Protected Use of AI in Creative Works

TLDR 💡👀

The explosive development of artificial intelligence promises creative and commercial benefits on a scale rarely seen before. Yet, as AI continues to evolve, it places new strains on long-standing copyright principles that were designed to protect human originality. Under current U.S. law, copyright protection requires human authorship, which makes purely AI-generated works ineligible for copyright. Even carefully crafted prompts—often called "prompt engineering"—may not themselves establish authorship if the AI system truly drives the creative content.

According to the U.S. Copyright Office (USCO), meaningful human input that shapes the final output is crucial to securing copyright.

Country artist Randy Travis, who, after suffering a stroke, used a special-purpose AI tool to preserve his creative intent, was covered under the law for his highly personal use, being both the voice and the original artist).

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Why Documenting Your Creative Process Matters

Keep meticulous records of prompts, revisions, data sources, and decisions.

There are 4 key benefits to being diligent with documentation of AI use in your creative process.

1. Clarify the Human Parts of AI Co-Creation: Detailed records identify the human-driven steps that shaped the final work. — an essential defense should you need to establish authenticity.

2. Collaboration: In collaborative AI projects as with software and design, documenting each phase of the work clarifies who contributed what, minimizing confusion about attribution or ownership.

3. Source of Record: Past prompts, iterations, and AI model selections become valuable data points that help creators refine future processes.

4. Demonstrates Ownership: Depending on the project's scope, this record-keeping can be as simple as storing version histories or as complex as maintaining logs of every prompt and output. Weigh the importance of record keeping against the actual risks when deciding but err on the side of good record keeping without adding extraneous labor (make sure the juice is worth the squeeze).

Controlling the Use of Your Work in AI Training

Beyond questions of authorship, a second area of legal uncertainty involves using your works to train AI models. Some argue that such training might be covered by fair use, while others contend that it could infringe your rights—mainly when done without permission. If you wish to protect your creations from unauthorized AI training, consider these strategies:

Watermarking and Metadata: Embed recognizable markers in your work and contact information or licensing terms in metadata. Although not foolproof, this can signal your intent against unauthorized use.

Technology-Based Protections: Tools like "Nightshade" and "Glaze" aim to distort AI image models or camouflage your work, making it less appealing for training. Investigate these emerging solutions to see if they suit your medium.

Cease-and-Desist and Licensing: Legal notices can prompt removal if you discover your work is being used in a dataset without your consent. You can also offer a licensing arrangement that spells out permitted uses, including training restrictions.

Contracts and Platform Policies: Many online platforms have terms of service governing posting content reuse. Check whether your chosen platforms claim a license to use your material for AI development.

Federal Register

Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence

Bookmark this page.

Addressing Digital Replicas and the Right of Publicity

Another complication arises from using AI to create or manipulate digital replicas of individuals—an issue intersecting with "right of publicity" laws. These laws generally bar unauthorized commercial exploitation of a person's image or voice, but they can leave gaps in non-commercial contexts, such as deepfake pornography. Legislative proposals like the "NO FAKES Act" aim to tighten protections, giving individuals the right to control any digital replica of their likeness or voice.

Practical Steps for Creators

Use AI as a Tool, Not a Replacement: The USCO differentiates between AI that fully replaces a creative role and AI that assists. If you aim to claim copyright, ensure you retain control over key expressive decisions.

Stay Informed and Involved: The law around AI will play catch up to the tech as usual. Start conversations or join discussions with your creative network. Be a leader in this space.

Possible International Protections: Some countries recognize limited rights for computer-generated works, though definitions of "human author" can be blurred. If your creative work is distributed globally and would benefit from international laws, look into what applies to you.

Clarity: Describe what AI-driven uses of your work are allowable in the public domain. Also, document your use of AI in your creative works.

Stay tuned to TheTechMargin for more on this process and how I use it in my own works.

Tools for Creative Exploration

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The Future of AI and Copyright

Changes may come as AI systems develop capabilities that allow for more direct, fine-tuned human control over final outputs. The USCO does not rule out future models that permit humans to steer every aspect of production, effectively making the AI's role purely mechanical. Meanwhile, legislative efforts around digital replicas and right-of-publicity laws will continue to reshape how individuals can prevent unauthorized use of their likenesses.

Creative professionals working with AI in your process protect your work through documentation.

As the legal landscape evolves, so will AI's creative potential.

For more insights into the intersection of creativity, AI, and intellectual property, visit www.news.thetechmargin.com.

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