April 5, 2023
Content Ownership is a Critical Issue for Digital Marketers
Content derives value based on the traffic it generates in digital marketing.
And if your content is valuable, do you have a clear understanding of who owns it?
And there's another interesting question that's being kicked around by copyright lawyers today: Who owns AI-generated content you create with ChatGPT?
What does the U.S. Copyright Act say about copyright ownership?
The simple answer is you own the copyrights embodied in the content you create if you are the author of the content and you are creating the content solely for yourself.
Example: if you create a blog post for your website, you are the author and copyright owner.
Example: if you are the photographer or videographer for a video post for your website, you are the author and copyright owner.
But what about the content you create for someone else, such as your employer or your client who hired you to create the content?
If you are a regular employee of a company and you create content within the scope of your employment, your employer will be deemed to be the author and copyright owner. This result would be “work made for hire” (the hiring party wins).
If you are an employee and create content that does not involve any connection to your work as an employee, you will be the author and copyright owner (Not a “work made for hire”; you win).
In oversimplified terms, if you are an independent contractor, the default under the Copyright Act is that you own the copyrights (you win), UNLESS there is a signed written agreement stipulating that the content is a “work made for hire” (the hiring party wins).
What does the U.S. Copyright Office say about AI-generated content?
On March 16, 2023, the U.S. Copyright Office published guidance titled: Works Containing Material Generated by Artificial Intelligence.
These are the five main points.
- Human authorship is required for copyright registration.
Long-standing copyright policy (Copyright Act and case law) requires human creativity.
“Users do not exercise ultimate creative control over how such systems interpret prompts and generate material.”
- Prompts do not equal creativity sufficient to rise to the level of copyrightable authorship.
“... prompts function more like instructions to a commissioned artist—they identify what the prompter wishes to have depicted, but the machine determines how those instructions are implemented in its output."
- The Guidance was silent regarding ownership by the AI developer.
- Applicants for copyright registrations should disclaim AI-generated content.
“Human authors may claim copyright in separate text, compilations, and possibly significant changes to AI-generated content.”
- Prior applications & registration should be corrected.
“Authors should disclaim AI-generated content."
Copyright ownership is determined by specific rules.
Digital marketers should have a clear understanding of the rules regarding copyright ownership to avoid the loss of copyright ownership for valuable content.
Regarding AI-generated content, the Copyright Act and existing case law controls. Human creativity and authorship is required for filing for copyright registration. AI-generated content should be disclaimed in copyright registration applications.
Download the Copyright Office's Guidance Here.