Best Practices for Copyright in the Age of AI

In the past, an artist’s originality wasn’t in question simply because they used a camera, a musical instrument, or brushes and paint. Everyone understood that these were tools to create something original, and that the original work was something that could be protected. Now, as AI becomes a more common tool in the creative process, protecting your work requires more effort.

Take the recent case of a piece of art named “A Single Piece of American Cheese,” where the artwork successfully received a copyright for AI-generated art. Despite the artwork being created with AI, the Copyright Office granted the copyright because it contained “a sufficient amount of human original authorship” in the selection, arrangement, and coordination of the AI-generated elements.

This is a great development for artists and helps to start give more clarity on how to protect original creative works. Here are a few best practices we can take from this example:

Best Practices:

• Always use AI as a tool, not a replacement: 

  • Just like a camera or a paintbrush, AI should support your creative process, not replace it. While this is hard to define with bright-line rules, the next practice can help clear up any uncertainty.

• Document your creative process: 

  • The “A Single Piece of American Cheese” artwork was submitted with an actual time-lapse showing each step of the creation process. That’s how the creators proved significant human involvement, rather than relying on the Copyright Office to figure it out themselves. In fact, the Copyright Office first denied the copyright, so we know the documentation went a long way in getting protection. Similarly, be sure to document every stage of your creative process when using AI, showing how much input you provided versus the AI’s role at each step. While this might be tedious, it’s crucial to protecting your work.

• Understand copyright boundaries: 

  • It’s important to understand that in the “A Single Piece of American Cheese” example, the AI-generated components weren't found to be copyrightable, but the final composition was. This isn’t a huge surprise, as it’s similar to what happens when an artist uses a foundational element in their work that isn’t otherwise protected—think of using public domain music in a film or painting something original on Venetian painting. In these cases, the music and the Venetian painting are not protected by copyright, but the final creative work can still be protectable, as long as the artist’s contribution adds something new and original. What’s unique now in the age of AI is that a new element made by the AI tool would still be ineligible for protection. However, what appears to be the same is that the final creation can be protected.

As AI tools become part of the creative toolkit, it’s crucial to show how you use them to ensure your work is protected just like traditional art forms. The more you document your process, the better your changes of protecting your work.

Need legal assistance? By taking these key considerations into account, you’ll be better prepared to navigate the complexities of intellectual property and AI while ensuring your creative rights are protected and your compensation is fair. Need further guidance? Contact Think Creative Legal today to schedule a consultation and discover how TCL’s expertise and proactive approach can benefit you and your business.

The foregoing is not legal advice and is meant for informational purposes only.