Category: Intellectual Property

Opportunity Costs (and with AI it may cost a bunch)

Lately, one reads a lot of statements with the preamble “Artificial intelligence presents opportunities and challenges…” But is this the right way to frame the conversation? Because if we’re talking about creative professionals and their industries, it is probably more accurate to say that generative AI presents clear threats and some opportunities. Although we are trying to predict future outcomes, and many expectations about AI (good or bad) may not come to pass, if generative AI is an existential threat to potentially millions of creative professionals while offering opportunities for a few, then it is wrong to begin the discussion as if opportunity and challenge are balanced forces.

Take, for example, the tentative agreement reached between the Writers Guild of America (WGA) and the motion picture producers, which includes the following provisions regarding the use of artificial intelligence:

  • AI can’t write or rewrite literary material, and AI-generated material will not be considered source material under the MBA, meaning that AI-generated material can’t be used to undermine a writer’s credit or separated rights.
  • A writer can choose to use AI when performing writing services, if the company consents and provided that the writer follows applicable company policies, but the company can’t require the writer to use AI software (e.g., ChatGPT) when performing writing services.
  • The Company must disclose to the writer if any materials given to the writer have been generated by AI or incorporate AI-generated material.
  • The WGA reserves the right to assert that exploitation of writers’ material to train AI is prohibited by MBA or other law.

These conditions prove the point in that they primarily seek to mitigate the threat of AI while opening a narrow and conditional window for the opportunity to use AI. Safeguards like these are necessary because it can be assumed that producers and show runners will be tempted by the prospect of paying fewer writers to “collaborate” with generative AI to produce scripts. But even if that approach were to prove effective (and there are reasons to think it would not), a writers’ room of, say, two instead of ten is not necessarily an opportunity. And perhaps not even for the show runners for very long.

Thinking solely about the U.S. economy, those laid-off writers would represent eight middle-class jobs lost—eight people who would curtail, if not cut off, their entertainment expenditures while they take the “opportunity” to ply their skills in other fields that may also be shedding jobs due to AI. If AI were to reduce the workforce in the entertainment industry alone, it would suck but could potentially fall within the principle of creative destruction. But if AI decimates work across multiple sectors at the same time, then products, including TV shows and movies, will lose customers, thereby nullifying those short-term savings gained by laying off those eight writers.

Meanwhile Creative Work Would Start to Suck

Beyond considering whether generative AI is an opportunity in cold, economic terms, it is hard to imagine outcomes that do not either diminish the cultural value of creative expression itself or trigger a rebellion against AI-generated material and dash the ambitions of the tech developers. In this regard, the “democratization of creativity” is a woefully ignorant goal as well as a dishonest talking point.

The promise that generative AI will “democratize creativity” should be read in the same light as Big Tech’s promise to “democratize information,” which has proven disastrous for democracy. Just as searching the web for “information” does not make the individual a journalist, instructing a generative AI to render ideas into expression does not make the individual an artist. And just like we continue to founder in a sea of disinformation, there is no broad, social value in “democratized” art any more than there is a market for children’s drawings tacked to a million refrigerators. If everyone is an artist then nobody is, and the value of creative expression diminishes accordingly.

That the creative process can be reduced to an algorithm which can learn how to write, draw, paint, etc. cannot be wholly denied when generative AIs are already doing these things and will presumably get better at doing them. However, the expectation that generative AI can or should displace artists may be the apotheosis of the TechBros’ enduring cynicism about the value of individual creators. In the trenches of the “copyright war,” creative professionals have been accused of being self-important, greedy, rent-seeking, whiners unwilling to get real jobs. And now that Big Tech is releasing tools that promise to obviate the need for creators, the newest hashtag claims that professional artists enjoy a #CreativityPrivilege that will finally be disrupted. In this context, generative AI can be seen as tech’s nuclear strike in the copyright war to prove once and for all that “original expression” is an illusion and, therefore, that any rights associated with original expression are a mythical construct that must be abandoned.

This impliedly jealous relationship with artists is an extension of the problem that the tech-utopian, anti-copyright crowd has never quite understood what artists do or why they do it. For instance, artistic output is not solely the result of interest plus training. Many great artists never receive formal training, and many need to escape formal training to find their own voices. Every artist will eventually, if not continually, go through a process of learning and unlearning various “rules” to make the craft their own. It may be a cliché to think of the artist as suffering or broken, but it is certain that the artist is sensitive to the world in a way that she is moved to respond through expression. And these are just some of the unpredictable human qualities that no computer can emulate with the math of probability outcomes.

Although it is plausibly argued that a creative-minded individual might have a disability which AI can help overcome, citing this hypothetical to justify the “democratization” narrative comes with a few caveats including:  1) enabling the few does not justify displacing the many; 2) if AI devastates the professional, creative ecosystem, the newly enabled artist can only be a hobbyist among millions of other hobbyists; and 3) if anyone believes the billion-dollar investments in generative AI were made with the intent to help someone with cerebral palsy become a painter, I’m calling billion-dollar bullshit. That may be a positive effect, but it is not the purpose of these machines.

Could the Models Simply Fall Down?

If generative AIs were to displace enough professional artists, it is possible that entropy will demand that the models exhaust their capacity for new outputs—let alone outputs that are of any interest or value. If we remove, say, one million working artists from the equation over the next few years, what will continue to feed the training models? Is the “sum of all human output” as of today sufficient to enable a generative AI to produce infinite, relevant expressions indefinitely? Maybe. But not necessarily.

Because artists are people who respond to the world through expression, timeliness and context matter a great deal. There are many reasons–from aesthetics to subject matter–why theater of the 19th century or television programs of the 1980s or ad campaigns of the 1960s are anachronistic to a contemporary audience. Yes, certain works endure or become freshly relevant as remakes because human experience is, in part, cyclical. But it is the artist’s sensitivity to the contemporary world that makes those connections, and the process of synthesizing that into creative expression is often instinctual as much as it is intellectual.

Yes, artists recycle and build upon prior works, but the relevance of a new expression at a given time and place requires a connection with audience that, again, is not merely the result of a probability outcome. This anticipates the likelihood that a lot of AI-generated work will be good enough but not necessarily good—a concern that directly affects the market for commercial art where many creators make a living.

For example, the stock music market for commercial use is built on a network of composers with the skills to produce a variety of tracks based on familiar and, often popular, music. If generative AI can adequately produce similar tracks by cutting out the human composer, the market for many composers is in peril. But again, if AI were to kill off or dramatically reduce new, human composition, it is conceivable that the “composition machine” might eventually fizzle out as it tries to burn the same fuel over and over.

No doubt, artificial intelligence will seed new opportunities, though I maintain that these are in fields other than the production of creative work. If the digital revolution in the creative market has taught us anything, it is that these technologies are generally an opportunity for owners of the tech at a tremendous cost to professional creators. Without the right safeguards, AI could exacerbate this trend in ways that will cost everyone.

Photo by: robcaven

The Mugshot Heard ‘round the World

It was no surprise that the mugshot was immediately copied onto tees, hats, coffee mugs, etc. and sold to Americans who see either a martyr or a traitor in the same image. It was also no surprise that Team Trump produced merch of its own to sell for campaign (a.k.a. criminal defense) fundraising purposes. But these and other uses of the photograph have fostered some legal discussions on chat boards and elsewhere as to who, if anyone, has the right to control the exploitation of the mugshot. And so, I offer my own takes for what they’re worth.

Who Owns the Copyrights in the Image?

This is actually two questions:  1) is the Trump mugshot copyrightable at all? and 2) if so, who would be the owner of the copyright? Opinions will vary, but in my view, there are several factors that militate against enforceable copyright in this photograph, which is tantamount to having no copyright at all. If any party could own the copyright, it would logically be the State of Georgia or Fulton County, but aside from the fact that neither entity is likely to file a registration application for the photo with the Copyright Office, there is arguably no basis for finding sufficient originality in the image.

The mugshot photo station at the jailhouse is presumably as static as a surveillance camera—arranged to capture the same, fact-intensive photo for a highly utilitarian, informative purpose. No human (e.g., officer or clerk) can reasonably claim to have made any creative choices to produce original expression in the Trump mugshot, and this militates against copyright rights, which would then automatically transfer to the state or county employer. If there is any expression in the image at all, it is arguably Trump’s “creative” choice to make the angry face. But although I have explored the question of co-authorship by subjects in photographs, this is 1) a thought experiment outside the bounds of case law; and 2) a theory that would likely find less foundation in an image that is more factual than expressive in nature.

For these reasons alone, I believe the image would not be copyrightable, even if the state entity were to try to register the photograph with the Copyright Office. But no matter what, there is no legal authority under which Trump could own the copyright.

Can the Trump Campaign Control the Merch?

On August 29, Trump campaign adviser Chris LaCivita posted on X, “If you are a campaign, PAC, scammer and you try raising money off the mugshot of @realDonaldTrump and you have not received prior permission…WE ARE COMING AFTER YOU…you WILL NOT SCAM DONORS.”

Notwithstanding the tongue-biting irony of Team Trump using the word scam, LaCivita’s message could be read as a valid warning to any parties that might pretend to be the Trump campaign, but that would be an odd statement in regard to the mugshot because this type of fraud has nothing to do with use of the photograph per se. If, instead, LaCivita means to imply that the Trump campaign has an exclusive right to sell “official” mugshot merchandise for commercial purposes—or to prevent use of the image to raise funds in opposition to Trump—then he’s dead wrong on the law, as that crowd so often is.

Trademark Law Does Nothing for Trump

Although it is permissible to register trademarks in certain words or images used in political campaigns (e.g., slogans or logos), there are both administrative and doctrinal reasons why the Trump campaign could not claim the mugshot as a service mark. As a practical matter, the trademark claimant must use the relevant mark in trade when applying for protection and then go through a rather lengthy process to affirm the mark remains in use—and use in a specific class (or classes) of goods and/or services.

But in this case, the instant the mugshot was shared with the world, it conveyed irreconcilably divergent meanings to the public. So, under trademark practice, could Trump assert the exclusive right to use the “mark” in a class called Multiply Indicted, Seditious Former Presidents? Probably not since no such class exists. But that’s generally what the image conveys to millions of Americans, and the purpose of trademark is to protect the earned integrity of brands, not to burnish the reputations of politicians reviled by more than half the population.

What About Trump’s Likeness?

It may not be Trump’s mugshot as IP, but it is certainly his mug, and doesn’t his right of publicity (ROP) allow him to control how his likeness is used? As discussed in context to artificial intelligence, ROP laws are statutory in half the states, common law elsewhere, and there is no federal ROP statute. Most importantly, though, ROP generally applies to commercial use of an individual’s likeness for endorsement or advertising purposes. Thus, Susan Scafidi, founder of the Fashion Law Institute is off the mark, as quoted in the New York Times stating, “Trump could, in theory, attempt to shut down sales of merch with his mug shot, not unlike the way Obama objected to appearing on a Weatherproof Garment Company billboard…”

I believe this is incorrect. Unauthorized use of a likeness (even of a political figure) for commercial advertising is likely to be a paradigmatic violation of ROP. So, if an entity were to use the Trump mugshot to promote its goods or services, Trump should have a strong legal foundation for stopping that use.[1] By contrast, reproducing the mugshot for the purpose of mocking, criticizing, or downright hating any political figure is protected speech at the core of the First Amendment, and Trump would have no legal foundation to enjoin such uses.

But what if the mugshot is reproduced (on merch or elsewhere) without accompanying commentary? If I walk through town wearing a tee shirt with the unaltered mugshot on it, observers who don’t know me would have no idea whether I am celebrating or denouncing the Georgia arraignment. So, does this ambiguity alter the First Amendment consideration such that Trump would have any grounds to stop the production of merchandise that merely reproduces the photo? Again, I would say no if only because the mugshot is a factual statement of extraordinary newsworthy value to the public. Thus, the production and distribution of merchandise bearing no communication other than the image should still be protected by the speech and press rights, even if the right of redress is not implicated.

So, that’s my 50 cents on some of the legal discussion surrounding this image, which may one day be more widely reproduced than Alberto Korda’s photograph of Che Guevara.[2] Of course, this is all nerdy food for thought because it’s hard to imagine that any of these questions will ever be presented in court. Even if Team Trump could show standing, they have bigger sheep to fleece and zero hope of controlling the perception of millions that a mugshot is usually just a photograph of a criminal.

[1] It is of course possible to blur the line between a company’s politics and its marketing, which would result in a fact-intensive inquiry into the matter. Likewise, a not-for-profit could promote a policy message that Trump does not endorse and use the mugshot to illustrate the opposition, and this should not be a violation of ROP.

[2] Ironically, this is actual and rampant infringement of the photographer’s copyright rights.

What Does the Valancourt Decision Mean for Most Creators?

As discussed in an earlier post, Valancourt Books, a small, on-demand publisher, filed suit against the Copyright Office and the Department of Justice and argued that the Office’s demand for physical copies of published books is unconstitutional. Valancourt alleged that the authority granted by §407 of the Copyright Act to demand the copies (or be fined) is a violation of both the First Amendment speech right and the Fifth Amendment prohibition against a government taking of private property without “just compensation.” This week, the DC Circuit Court of Appeals agreed with Valancourt’s Fifth Amendment takings claim and declined to weigh the First Amendment claim.[1]

We agree with Valancourt that Section 407’s demand for physical copies of works, as applied by the Copyright Office here, represents an uncompensated taking of private property under the Takings Clause. We need not reach Valancourt’s First Amendment claim, as it seeks the same relief through that challenge.

Background (Summarized from Post of August 2021)

Valancourt produces books on-demand from old, rare, and hard-to-find manuscripts, including some dating back to the 18th century. Although many of the underlying works Valancourt republishes are long in the public domain, the companion material in their editions (e.g., scholarly introductions and footnotes) are subjects of copyright; and some of the manuscripts they print are still under copyright protection and used by permission of living authors or their estates. So, although the publisher does not register its books with the Copyright Office, it does place copyright notices in the front matter to alert readers that either the underlying manuscript and/or supporting materials are protected.

In 2018, Valancourt began receiving letters from the Copyright Acquisitions Division (CAD) of the Copyright Office demanding physical copies under the statutory deposit copy provisions of §407. The initial demand was for two copies of each of Valancourt’s 341 published titles. The publisher stated that this represented a significant financial and logistical burden and, finding no satisfactory relief in the Office’s compromise offers, they filed suit on the constitutional allegations. The district court ruled in favor of the government, and the DC Circuit has now reversed.

The Heart of the Decision

The most substantive aspect of the Valancourt decision is the court’s holding that the demand for physical copies is a taking because the publisher does not receive any benefit for supplying the copies. “A voluntary exchange for a benefit…does not exist if the purported ‘benefit’ is illusory,” the opinion states. Because copyright attaches automatically to any work fixed in a medium of expression, a party like Valancourt truly gets nothing in exchange for providing physical copies.

What the Valancourt decision means for most individual creators is not much, but it may be easy to confuse the issues here with the registration process (§408) in which deposit copies are a requirement of the registration application. Many creators are aware that in order to apply for copyright registration, they have to send in a copy of their work. That is governed by §408. In contrast, §407 allows the Library of Congress – through the Copyright Office – to demand a copy of any work published in the United States. Sending a copy for registration under §408 can satisfy the requirement under §407, but because Valancourt does not register the books it publishes, that was not relevant here. Consequently, the Office’s demand for physical copies (based solely on the act of publication) is acutely unjust in this instance because Valancourt gets absolutely nothing for providing free copies for the Library’s collection at its expense. This is distinctive from the deposit copies required for registration.

The deposit copy submitted for a registration application, whether electronic or physical, is less likely to be viewed as a taking because the applicant voluntarily obtains key enforcement advantages by complying with the registration requirements. Registration is not mandatory for copyright rights to subsist but is (among other things) a prerequisite to filing an infringement claim in federal court. Physical copies are required with a registration application if the work is published at the time of the application and if the work is first published in physical form, but again, because this is a condition of registration, and registration provides tangible benefits, this deposit condition is less likely to be found a taking.

That said, where the Office may exercise its right to demand copies based on publication (§407), the Valancourt decision may have some interesting implications. For example, if an author registers a final-edit manuscript in electronic form and later publishes that material, she (or the publisher) may receive a demand to provide physical copies or face a fine for failing to comply. But after Valancourt, the demand for physical copies solely at the threshold of publication, would seem to be a taking because, again, the author/publisher gets no additional value in exchange for providing the copies. The underlying registration (e.g., in the previously unpublished manuscript) is not invalidated by a failure to provide post-publication physical copies.

This is More About the Library of Congress than Copyright Law

In Valancourt, we see one example of the tension that can arise between the interests of the Library of Congress and the efficient administration of copyright protection for creators. As discussed in other posts, the often-confusing formalities in U.S. copyright law are largely due to the historic, but not always compatible, relationship between the two institutions. The Copyright Act of 1870 consolidated registration and deposit at the Library for the purpose of growing the collection, and in 1897, the Copyright Office was established within the Library as both the administrative and expert agency.

But as the outcome in Valancourt highlights, the author/publisher’s copyright interests and the Library’s authority to demand copies are in conflict. With 1870 barely visible in the rearview mirror, the Library still wants free materials, but Valancourt shows that this mission is not wholly predicated on the author/publisher’s interest in obtaining the full advantages of copyright protection. And perhaps this is especially true in a modern, digital-age market.

Notwithstanding the unpublished manuscript scenario above, most publishers send physical deposit copies with registration applications for published—or about to be published—books.[2] But if the Valancourt decision stands, it is conceivable that many publishers, especially smaller presses, will argue that they are allowed to submit electronic copies or must be compensated for the cost of sending physical copies. We shall see whether the government appeals this decision to the Supreme Court, but in the meantime, most creators can file this case under the heading Conversation for Copyright Nerds and continue registering their works with electronic deposits. In any event, please remember to register immediately—before your work is published and before it can be infringed – to get the full protection of the Copyright Act.

[1] FWIW, I wonder whether Valancourt’s speech claim would have merit because it seems that Plaintiff would have to show that the demand for physical copies, though enforced inconsistently, is content based. City of Austin v. Reagan National Advertising of Austin, LLC, 142 S. Ct. 1464 (2022).

[2] There are good reasons to do this, not the least being that the physical book is the final draft of all the material being registered.