Can Filmmakers Use AI Without Losing Copyright? #306

In this episode of The Screen Lawyer Podcast, Pete Salsich breaks down the real-world copyright risks filmmakers face when using AI tools. With no final court rulings yet on AI training and copyright, and the Copyright Office denying protection to fully AI-generated works, filmmakers must tread carefully. 

Pete discusses a candid conversation with a filmmaker navigating these issues and offers practical advice on how to protect your work through substantial human authorship and smart contract language. If you're using AI in your creative process, this is a must-listen.

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Transcript

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So we talk a lot about AI and copyright. We covered the cases that have been filed. There's more cases getting filed. This issue is not going away and the courts haven't moved yet. But filmmakers are struggling right now with how to deal with the potential copyright implications of the use of AI. And I had an amazing conversation with filmmaker last week. And I want to tell you about it. Stick around. Hey there. Welcome to The Screen Lawyer Podcast. I'm Pete Salsich, The Screen Lawyer. And today, I want to spend a little time in a world that we spend a lot of time already. And that's this copyright versus AI conundrum that's been going on now for really more than almost two years. Really. With lawsuits being filed against a variety of, large language model, AI engines, ChatGPT, Midjourney, many others over the training process. Really the issue of can these AI engines legitimately, typically under a fair use defense, go ahead and use millions of copyrighted works, scrap them, use them to train, and then place, you know, output into the world based on learning by taking those copyrighted images. And that's an issue that's there's multiple cases in front of the courts, and the courts haven't ruled yet on that fair use defense. We've talked about that a fair amount. There's a case that was just filed a couple weeks ago that I think is another in a line, but also present some new issues. And that's a case. The shorthand is Disney versus Midjourney. It's Disney and a whole bunch of other studios. Midjourney is the graphics I engine and you can now it will now output virtually identical copies of Homer Simpson and Disney characters and all sorts of other copyrighted images. And of course, the training is being challenged as it is in the other cases. But in this case, we actually have output that is in fact a copy of the copyrighted works. In some of the other cases, we didn't have the output that matched only the possibility of output that could match. So it's we're getting closer to testing the limits of where this can be, but these cases are moving really slowly through the court system as they do. We haven't had a single one yet. Rule on the fair use defense as it applies in these training models. And until that begins to happen or cases get consolidated, I think we're going to get some rulings that are inconsistent with each other. They're all going to get appealed. That'll work their way up through the appellate circuits and eventually likely to the US Supreme Court, on one or more of the cases. And that'll start to give us some guidance. But that's years in the making. In the meantime, what is a filmmaker do? How do you address this issue when you want to use these tools? But we have a baseline principle from the Copyright Office that says, if you use AI only to create a work, particularly a visual work, then there is no copyright. And that goes back to the Copyright Office. Just a ruling a couple of years ago, regarding a graphic novel that basically said the graphics portion of this is not issued a copyright registration because the authors admitted that they used it AI entirely to do that. There was no human authorship. And it reinforced the basic principle which we've talked about here, which is you have to have human authorship in order to have a copyright. Why does that matter? Well, remember, in the film world, at least in the business structures that we currently have in place, and I don't think they're going away. All of the economics in the film and television and video world and music is the same way, require one copyright owner that owns one entity or person that owns the copyright in the finished work, and then that entity can make payments of royalties, assign rights, license the film or the show for distribution, etc., etc. if you don't have a copyright owner, a lot of those economics fall apart. That's true with the writers Guild. And they finally settled their strike, in large part because the writers got the studios to acknowledge that if they didn't protect the writing part of the of a film script, for example, and make sure that humans were involved, they could risk the copyright in the underlying story going out into the public domain because it's too much AI. So we have this basic starting principle you must have some human authorship meaning if you create something solely with AI, no copyright. So I recently had dinner with a film maker who's struggling with this very thing, and we were talking about, sort of how to use AI, and he was pretty excited being able to show me on his phone some, some things that they were able to do in the studio very, very easily. And, and that often means inexpensively, which is an important part of this issue. And this is a filmmaker that is involved in, as, as many are, you know, certainly working on actual films and television shows, but also makes a living often doing shorter video projects, commercial video projects, etc.. And in all of these worlds, your budget matters. If you can produce something less expensively that doesn't sacrifice quality, you do that. That's why so many, exciting tools exist, you know, from all that CGI, for example, green screen technology, these are all the use of technology by humans to create art more vividly, be able to do more things for less money. Right? A good thing, and generally speaking. But what if the there is parts of a film, for example, that are themselves, if you discretely look at this seven seconds, that entire seven seconds is entirely generated by AI. And what I mean by that is the human gave a prompt into the talk to type to prompt in, but did not actually do anything to manipulate the images. The images came up completely based on the prompt given in. No matter how complex or simple the prompt the courts are in the Copyright Office so far has ruled pretty consistently. Prompts only do not create copyright, authorship, ownership in a visual image resulting from those prompts, you've got to do something to the image. I think you can start by putting a prompt in and saying, you know, sword fights in a medieval town, etc. whatever it is, and then work with what comes out by adding other layers, using other graphic tools, putting people and mixing it all in in such a way that the AI portion is just that. It is a portion that was then added to by substantial human authorship. What we don't know is how much human authorship is required to be, quote unquote, substantial. And this is where the conversation went, because I was starting from asked the lawyer saying, well, you have to make sure that you have substantial human authorship. And he's like, what does that mean? And I realize it was it was a really interesting conversation. We went way down the rabbit hole about, you know, and he was really he was frustrated, frankly, with sort of the state of law. How do I compete? I know filmmakers are using this all the time. Why can't I? And I'm saying, well, you can, but if I was your lawyer, I would want to make sure you understood that if you use too much AI and not enough human, there is a risk that your work goes out into the world in the public domain. And so if it matters to you that there's a copyright owner, if you're getting paid by someone to do something as a work for hire, it absolutely matters to you. If you want to be in the business of perhaps licensing or paying back investors paying royalties. Of course, copyright matters, so it is important that you don't risk losing your copyright in your finished work. But his problem was, how do I know how much I have to do? What do I want to use the tools everybody else is doing? I want to be able to cut this thing that used to cost $100,000 down to $10,000, or whatever the math is, and that's really meaningful in his business. And it made me realize that part of the challenges that filmmakers face, and this is probably true of creative people in all sorts of arts, is the technology is vastly outstripping the courts and the law. But as the law does and as courts do, they eventually catch up and they they don't go away. The law still applies. We just have to learn how to interpret the law within the new technologies with respect to training in these cases that we've been talking a lot about, that's slowly happening. That's going to help define the contours of fair use, all sorts of things. But right now, these businesses are making a ton of money, and they are getting massive adoption by filmmakers and all sorts creative people because they enable so much, but they also enable copyright infringement. They think that's pretty clear. And so where do you fall on this line and what where we kind of ended up, in this conversation was that his point is everybody's doing it and not so like everybody's doing, therefore it makes it legal. But is it how are you going to put how are the courts going to put this genie back in the bottle. So to speak? Right. What happens if the courts begin to rule that, you know, the A's can't work in this way or you can't use too much, you know, film? How is that going to be interpreted? Ultimately, I think what happens is because it is so widely adapted, because it is so widely, enjoyed, let's put it that way, the the law or Congress in a new statute or the way we draft contracts is going to have to adjust. Not to say you can't do this, but to say, here's how to do it. And this goes back. We've talked about this in the past, on the podcast that, you know, when we have the Digital Millennium Copyright Act right now, it's been around for more than 20 years. And this is the statute that essentially created, enabled Facebook, Instagram, YouTube, all of these things really to exist and to thrive because the platforms get a safe harbor for infringement claims. This came out of the Napster cases back to the early music file sharing cases where Napster, the courts essentially said, only exists for the purpose of enabling copyright infringement. Well, YouTube was following not too far, past that. And of course, it all kinds of copyright infringement on YouTube. But ultimately, the DMCA said if YouTube and all platforms like it have a notice and takedown process meaning I see a copyright infringement if I see an infringing work on YouTube and I'm the owner, I have a way to go right to YouTube. Have that taken down, show that I'm the copyright owner and YouTube will take it down. And then it's the other person has to argue with me about it. But YouTube, as long as they have that procedure, I can't sue YouTube for copyright infringement. That's enabled this entire, ecosystem that now we now take for granted to thrive. And in part of that, I think, was because what we learned in the Napster cases, iTunes came out of that same world is that people want to use this technology. People want to share files. People want to access songs one at a time. People want to make and share videos. That's not going away. So the statutory system had to adjust in a way to allow both the creation to work copyright to be protected and the new technologies to flourish. I think we're at that point now where sometime soon there's likely going to be a movement because of the nature of these cases and because of the widespread use that some sort of statutory scheme needs to be put in place to help filmmakers understand what's permissible and what's not. That's going to be shaped by the courts at one end. It's also, I think, going to be shaped by the contracts we draft now and we get back into the argument. Well, well. So for example, in a contract now, I would include, if I'm the party hiring a filmmaker on a work for hire basis, and I'm going to hire an animator or a, you know, whatever portion of the creation that I'm doing, I'm getting from an independent contractor, I need that written, contract that says this is a work for hire, they assign all rights to me, etc., that we've talked about. But often in those contracts, there's another provision. And that's where the independent contractor filmmaker is saying, I represent warrant, that I own everything, or I will be this will be new work solely created by me, and I have the right to assign it to you, etc. also, I'm not infringing anything else. There's two parts to that promise. One is I didn't go copy this from somebody else. Not infringing, but two is I actually own what I'm giving to you so the ownership becomes yours. Well, if I if that filmmaker, though, goes out and I don't know it and they everything they do, they do on Midjourney with written prompts and there's no, visual work by the original art by the filmmaker. I didn't get a copyright that's actually in the public domain. So now we're putting into the contract that the filmmaker represents, the warrants that their work will be a, a work of substantial human authorship. That's about the best way we can write it. We're I mean, you can write that you won't use any. I. But I don't think that's realistic. And that's going to, you know, you're just going to use somebody else. They're going to use it not tell you, but to say it's substantial. Human authorship is good contract language because it matches what the Copyright Office says. But what does it mean? What is substantial? We don't know yet. We have one ruling where there was no human authorship. That's easy. No human authorship, no copyright. What if there was 1% human authorship? Is that substantial? I mean, I can get into arguments. Well, it's not substantial in terms of percentage, but how do you quantify something that really might be more accurately described as a qualitative statement? I did this slight little touching that took it from mundane to amazing, but it didn't take me that much time. So is that one percenters at 99%? I don't know. And the way the law works is we're not going to know until the case comes up where it's been 10%, what is 10% mean? And we start to get a court ruling on it, which means the case has to go through the court system, get a ruling, probably go to an appellate court, not settle along the way where we know get an actual ruling. And so until we have maybe ten of these cases and you can start to say, well, this one was substantial, but that one wasn't, and you could begin to compare. You just are not going to know. And I'm not sure we're going to get those cases any time soon. So what's the best advice I can give to filmmakers is use substantial human authorship. You have to decide what substantial is, but make sure should it ever come out. This was one of the other questions the filmmaker had. How is anybody going to know? I mean, he thinks he can look at things and say, well, that was I, that was I. But the reality is, you don't know what was only I and what was partially I, etc., etc. and he's like, how will someone catch me? I said, well, maybe they won't, but what if someone on your crew, despite the confidentiality agreements, starts talking to somebody else because they're so excited about the I what I can do, and you just tell the world or tell somebody and it gets out in some way. That's how these things come up. Somebody, you know, the whole issue with the graphic novel in the Copyright Office a couple years ago is because the authors, once they got the registration, they went and gave interviews and said, we did this all the AI. So did you speak it out into the world? And then the world has to act on that. So the reality is there is risk. I don't know how much I mean project, but there is a risk that using only AI will mean you lose copyright protection for some, or maybe a large part of your finished work. That could be problematic. So the best you can do is do the best you can and make sure that should you ever get challenged on a certain segment of your output, this is what we did to create that. Yes, it started with an I started with a prompt, and then we did these things and then we added to that, and then we used this and we edited and we spliced and cut it in so that ultimately the finished work can be said to have had substantial human authorship throughout, even though there are some AI components. That's pretty complicated. It's also somewhat, probably frustrating because lawyers say, oh, do this. And then the film makes, well, how do I do that? What does that mean? I don't know, we're going to keep trying to figure this out, but I want to thank that filmmaker for allowing me to hear his passion in this conversation, because it made me realize it's too simple. If I just say, you got to do this, go do it. I got to help filmmakers think about it, and I get to think about it myself. Siggraph looks this issue is not going away. We will come back and talk about the Disney case that just got filed against Midjourney and another episode, and we continue to follow those cases as they work their way through the court system. Because sooner or later we're going to start to get some guidance in that area, but keep an eye out for legislation someday dealing with this, because I think that's where it's got to be in. So that's it for today. Not sure where this is going to go, but we're going to keep following it. If you've enjoyed this content, find us and follow us wherever you get your audio podcast. And if you're watching on our YouTube channel, thank you. And hit that like and subscribe button so you always know when the next episode comes out. Lastly, you can always find us and all the work we do at TheScreenLawyer.com. Take care everybody.