Penguins, Grogu, and the color orange: the implications of artificial intelligence and its use of copyrighted materials
In her article, "Penguins, Grogu, and the color orange," appearing in the Trademark Lawyer Magazine in Issue 3, 2023, Michelle Ciotola, Partner and Trademark & Copyright Chair at Cantor Colburn LLP, evaluates the ever-evolving debate surrounding AI-created works according to US Copyright Law from both a use and generation perspective. Michelle leads the #8 trademark practice in the U.S. and is a frequent speaker on intellectual property and artificial intelligence issues.
From her article:
"The application of the fair use doctrine is fact and circumstance specific. Even if the use of copyrighted materials in machine learning is fair use, what happens when the prompts entered into generative AI technology results in an output that does infringe copyright? Is the user of the technology liable for copyright infringement depending on how that work is then used? Is the developer of the technology liable for infringement? Contributory infringement? The answers to these questions will depend on the specific technology at issue, safeguards put in place, and the manner in which the output is ultimately used by user, among other considerations.
"Earlier this year for his seventh birthday, my son asked me for a painting of 'penguins, Grogu, and the color orange.' [Pictured below.] These are his absolute favorite things. The character Grogu, also known as “Baby Yoda,” was from the television series The Mandalorian, is well-protected intellectual property and subject to copyright protection. Curious about how Dall-E would handle this prompt, I entered the following prompt into Dall-E: “a painting of penguins and Grogu with orange.” The image generated contained penguins and orange, but no Grogu. Did AI understand the prompt “Grogu” but also identify it as subject to third-party intellectual property rights? Are there safeguards in place to guard against copyright infringement in certain circumstances?"