How using generative AI affects ownership of your creations—or, oh no, where’s my copyright!?

AI is so hot right now. We all use it. Heck, ChatGPT wrote a rough draft of this article. But if you use generative AI to design your website, write your code, or build your game what happens when someone copies that thing AI made for you?

You don’t own what a computer created.

Say you develop “Vampire Valentine,” a casual video game based on the premise of lonely undead looking for love in the New York City bar scene. You use ChatGPT to write chunks of game code and DALL-E 3 to create the graphics. The game is a huge hit on the App Store…for about three weeks. Then a blatantly similar game,“Zombie Darling,” starts stealing all your users and downloads are falling off a cliff. Sue for copyright infringement! Not so fast.

US copyright law grants ownership to human authors. In the words of the US Copyright Office, “the term ‘author,’ which is used in both the Constitution and the Copyright Act, excludes non-humans.” Thus, monkeys can’t own copyrights in their selfies, as we learned in 2014. And computers can’t create copyrightable content on their own. AI generated content is not protectable—it can be copied by anyone.

If you use AI to build your website, write your stories, draw your pictures, or create deepfake videos of your cat then anyone can copy that content for free, without attribution, for any purpose. You don’t own it. Budweiser can put it in an ad and make millions of dollars off of it without paying you a cent. If your website is AI-generated, I can copy the entire thing and use it myself without any copyright liability. (Using your trademarks would still be an issue, which I’ll cover in a later article.) If your newsletter is written by AI, I can slap my name at the top and send it as my own. Nothing AI generated is owned by the user.

The human touch creates ownership.

Ownership lies where a human did the work. How much human involvement is needed to establish copyright ownership is still being tested in courts. But there’s no doubt that substantial human creative control is required. The Copyright Office has already held that simply feeding prompts into an AI generator isn’t enough.

Going back to your vampire video game—how much do you actually own? If AI did the creative work and you put the elements together, at most you may claim protection over the “selection and arrangement” of those elements. That is called a “thin” copyright, which gives protection only against nearly-identical copying. Thus, unless the competing game is truly a clone that copied everything and used it in the same way, an infringement claim is likely to fail. And if you lose a copyright infringement claim, usually you end up paying the other side’s attorneys’ fees.

The moral is to include as much human-made content in your creations as possible. Generate a rough draft with AI, but then use your human brain to modify it substantially and to arrange it differently. For example, this article looks nothing like what ChatGPT wrote—that draft was dry and boring and wrong in places, which hopefully is no longer true.

“No AI” clauses are key in contractor agreements.

One more thing: If you hire a contractor to create content for you, make sure to include a clause in your contractor agreement that prohibits the contractor from using AI to generate the content you’re hiring them to create. It’s one thing if you know your work is AI-generated and thus has limited IP protection. It’s a much worse thing if you have no idea that someone you paid to do work used AI, and you don’t find out until you’re in litigation over something you allegedly own but really don’t. (Why you must have a written contractor agreement for creative work will be the topic of a future article.)

As generative AI shapes businesses of all types and sizes, understanding its impact on IP ownership is crucial. I hope you’ve enjoyed this and found it useful. Please get in touch if you have questions about IP or business law.