Maddyness column : AI generated content & the trap of selling rights that don't exist.
Generative artificial intelligence (AI) systems are now tools at the service of many creatives. Faced with this revolution, startups and creative agencies are relying on generative AI to offer tailor-made content to their customers, either through the personalization of generative AI models for visual brand consistency, or through the use of generative AI tools to generate content. The problem? These services are often accompanied by the sale of copyright on the content generated. While this business model is apparently attractive, its legal robustness is problematic since it consists in selling the ownership of content that, legally, cannot benefit from a monopoly of exploitation.
When AI creates, who owns?
In French law, as in most EU and Anglo-Saxon legal systems excluding the United Kingdom, copyright only protects content created by human beings. This protection rewards human creative effort by giving the author a monopoly of exploitation over his creation.
Content generated spontaneously by AI, whether images, texts or videos, cannot be used to characterize a human creative effort and therefore cannot be protected by copyright. Tested by the American Copyright Office, the “creative prompt” argument was rejected: according to the Copyright Office, the variability of the results generated by the same prompt excludes any characterization of human creative effort.
However, there is a notable exception to the refusal of copyright on content generated spontaneously by AI: content generated with the assistance of AI. When human retouching, post-production, or creative assembly substantially transforms AI-generated content, then that content can be protected by copyright.
The particular case of customer proprietary content
The situation is further complicated when content is generated by AI based on elements that are proprietary to the customer: visuals, logos, graphic charts or other creations belonging to the customer.
In this configuration, the only elements likely to characterize a human creative effort within the generated content are precisely those of the customer. Therefore, it is the latter that should legally have the rights to the final creation.
It seems difficult to justify charging the client for the acquisition of rights to a creation derived from its own intellectual property assets: this practice exposes the service provider company to commercial and legal risks.
A major commercial and legal risk
As the generative AI market is structured and case law is clarified, companies that have based their business models on the sale of fictional copyrights may find themselves in a delicate situation when faced with initial litigation.
In addition, customers, increasingly aware of the legal issues of AI, are beginning to question the validity of the rights granted to them. The legal departments of large client companies are now carefully examining the clauses relating to intellectual property rights in their creative service contracts.
The potential consequences are serious: reimbursement of amounts received as part of the transfer of rights, damages for commercial damage, questioning of contractual liability, not to mention the impact on the reputation and credibility of the company.
Adapting your business model: best practices
Faced with these challenges, several strategies make it possible to secure your business model while continuing to exploit the potential of generative AI.
First recommendation: abandon the sale of copyright on AI-generated content without substantial human intervention. It is better to focus added value on service delivery: expertise in the configuration and use of tools, the customization of the model.
Second recommendation: when your teams substantially transform AI-generated content (retouching, post-production, etc.), document this creative work to justify the ownership of the copyrights sold to customers.
Generative AI, yes; fictional rights, no
Generative AI represents a great opportunity for the creative industry. It makes it possible to accelerate production processes, to personalize content on a large scale, and to explore new creative territories. Nothing justifies depriving yourself of it.
But this technological revolution must be accompanied by an adaptation of commercial and contractual models. The temptation to maintain traditional copyright transfer schemes, even on AI-generated content, exposes businesses to considerable legal and commercial risks.
Rather than selling rights that do not exist, startups and agencies have every interest in valuing their expertise: the mastery of AI tools, the ability to generate relevant and personalized content.
Because in the end, it is this human expertise, this ability to give meaning and direction to the raw power of AI, that constitutes the real added value of creative professionals in the era of generative AIs.
Link to the column to read on Maddyness
This article has been written by Betty Jeulin and the English translation generated with AI.