Artificial Intelligence: A Small Biz Owner's Guide to Legally Leveraging AI

Technology is constantly changing every single day. And the newest technology that business owners are hearing about? Artificial Intelligence, aka “AI”. 

AI is essentially computer programs that are built to mimic human intelligence by producing a response to a user’s textual instruction, called a “prompt”, with the resulting output being textual, visual, or audio.¹ Online tools and programs like Chat GPT and Simplified are becoming more popular for business owners—especially creative business owners—to use to create social media posts, blog content, and product descriptions (among other things). However small business owners are often not stopping to ask these key legal questions about AI content:  

Can I OWN AI-generated content? Is it copyrightable?

Using AI is a great way to help your business grow by generating quality text for content and blogs. Usually using someone else’s words for your business would be a GIANT legal red flag. However, as it stands right now, that is not the case with AI content. Generally speaking, prior to this new AI world, you could not use someone else's words, artwork, or audio without their permission because it was considered copyright infringement. With artificial intelligence though technically there is no human at the other end of these programs writing these words or creating these images. Since it's a computer, the copyright rules are a little bit different. In recent months the United States Copyright Office has been forced to address and create new rules for AI content.

In February 2023, the Copyright Office issued guidance on AI-generated artwork stating that AI-created artwork cannot be copyrighted due to the lack of human contribution. Key to copyrighted works is that it involves a “human factor”, meaning that it is the product of human authorship. The Copyright Office made this statement in response to a copyright registration for a comic book with AI-generated artwork.² In this case, Ms. Kashtanova was the owner of the copyright registration for her comic book Zaya of the Dawn but since sought clarification from the U.S. Copyright Office regarding the use of AI for the imagery in the book. The Office determined that the comic book included text and a unique layout created by Ms. Kashtanova which was copyrightable, but that the imagery created by AI was not the product of human authorship and those images could no longer be considered copyrightable.³ In summary, what you need to be aware of here is that the U.S. Copyright Office is making a clear distinction of how much “human” participation is necessary for legitimate copyright registration.

Fast forward to March 2023, the Copyright Office again addressed the question of whether the text that was edited and rearranged by AI could be registered. The Copyright Office gave guidance in a typical lawyerly fashion stating that “it depends on circumstances, particularly how the AI tool operates and how it was used to create the final work.”⁴ Essentially the Copyright Office will take into consideration how much of the text was created by AI and how much the human author put in their own expression and creative control.

Then, most recently on March 16, 2023, the Copyright Office put out a public statement about launching their new “Artificial Intelligence Initiative”. This was BIG news in the legal world because it included guidance posted in the Federal Register on how copyright applicants must disclose AI contributions when registering.⁵ This publication features the steps on how to: (A) Submit applications for works containing AI-Generated Material, and (B) Correct a previously submitted or pending application. This is a MUST READ for anyone seeking copyright registration for material that has even minimal AI-generated content incorporated into it.

In sum, YES you can own content that utilizes AI and it may be copyrightable, but it's all a balancing act regarding the amount that AI played a role in producing that content. You have to ensure the majority of the work was created by you as a human.

Do I need to license AI content from AI programs?

Copyright ownership issues are not the only thing you need to take into consideration when using AI to create content. Licensing terms from AI programs are something everyone should be reading before publishing AI content in commerce. Most AI platforms give users a very broad non-exclusive license to use AI-generated content. For instance, Open AI’s licensing terms give a non-exclusive right to use AI-generated text for all uses including commercial, as do other platforms like Simplified. Some platforms may give you the right to use a non-exclusive license in exchange for giving them credit for any contribution their AI software makes to your content. The legal licensing lesson here: you MUST look at the licensing terms and conditions before using AI-generated content on your website or content, but MOST AI platforms give you a non-exclusive license to use their generated output for commercial purposes. Alas, you can totally use it for your business… while knowing that others may also get a license to use that exact same output (or super similar) from the AI platform because it is not exclusive.

How can I use AI content to benefit my business?

Simply put, AI should be used as a tool and not a replacement for a human brain. Because AI is a computer it cannot and should not take the place of human creativity and expression. However, you can use AI to help you when you're starting out to cut costs and improve your overall efficiency. 

For instance, if you are just starting your business and need help with copywriting but can't afford to hire someone, AI is a great resource to crisp up your content captions or blogs as well as help with calls to action, hooks, and short pitches. Many platforms like Open AI, Simplified, and Writesonic have a free subscription to AI-generated content for one user with a limited amount of words or storage. For other platforms like Wordplay and Hypotenuse AI you will need to pay for a subscription plan, but the pricing is very reasonable. The same goes for graphic design AI platforms such as Let’s Enhance, Designer by Microsoft, and others listed here. Hence, if you cannot afford to hire a copywriter or social media manager for your business, using AI could be a great place to start—although, to be super clear here, TLP does NOT agree that AI replaces actual experts in the field.

AI should merely be helping you finish the final touches of content. TLP’s legal caution when using AI for your blog or content: AI shouldn't be writing full blog posts or text on your website. The content you publish to the world should primarily come from your brain—as a real-life human—and should still feel authentic to your brand. Because AI is a computer it does have limitations and using it too much you may find that your content is repetitive to other business owners. If you have AI write an entire blog post about “Hiring a Florist” then it could be very similar to or even an almost replica of someone else’s blog on the same topic that also used AI software. Computers cannot insert that personal touch and brand USP (unique selling proposition) that you can put into your content. It is so incredibly important to keep your content feeling fresh and authentic… not robotic.

What do I need to do to ensure my business is LEGAL when utilizing AI?

Simply put: DISCLOSE WHEN YOU ARE USING AI. When you use AI toward any commercial endeavor, you absolutely should let consumers and the public know AI contributed! Otherwise, you can be at risk of a software company claiming copyright infringement or consumers claiming misrepresentation. This type of disclaimer and notice requirement is also coming straight from the highest government offices, like the U.S. Copyright Office. So, don’t forget this step if you’re an AI junky.

TLP’s suggestion is to do TWO key things:

1. Put a disclaimer within your Website Terms & Conditions if you are utilizing AI to create any type of content you are posting on your website. That means if you use AI to write the copy on your website, write blog posts, create stock images, etc. you absolutely should be disclosing that to users. HERE IS THE LEGAL LANGUAGE TO USE ON YOUR WEBSITE!

2. Put a clause in your client contract if you are utilizing AI in any way for the services you are providing. For example, if you use AI to batch edit your client’s photos, you will want to disclose that to the client. If you utilize ChatGPT to help write social media captions for your social media clients, you’ll want to disclose that. If you’re a copywriter who uses AI to create titles or hooks, you’ll want to disclose that. This is also the most ethical way to approach the use of AI right now because of consumer unawareness until it becomes more mainstream in society.

HERE IS THE CLAUSE YOU CAN COPY AND PASTE INTO YOUR SERVICE CONTRACT!

Choose your industry:

       

TLP’s TAKE AWAY

AI technology is very new to the business world and we are going to see LOTS of changes and potential regulations regarding how to use it legally and ethically. The biggest takeaway from using AI for your business is to use it as a tool and not a replacement for your creativity.

Part of ensuring that your business is prepared for any possible scenario involves taking steps to get legally legit now. Get your AI legal disclaimer HERE to be 100% legit with your use of artificial intelligence apps.

¹ https://www.govinfo.gov/content/pkg/FR-2023-03-16/pdf/2023-05321.pdf 
² https://www.copyright.gov/docs/zarya-of-the-dawn.pdf
³https://cdn.arstechnica.net/wp-content/uploads/2023/02/AI-COPYRIGHT-decision.pdf
⁴https://fingfx.thomsonreuters.com/gfx/legaldocs/byvrlmjlzve/AI%20COPYRIGHT%20notice.pdf
⁵See https://www.govinfo.gov/content/pkg/FR-2023-03-16/pdf/2023-05321.pdf

THIS BLOG POST IS NOT A SUBSTITUTE FOR LEGAL ADVICE. EVERY SITUATION IS DIFFERENT & IS FACT-SPECIFIC. A proper legal analysis is necessary based on your location and contract. Consult an attorney in your home state for advice regarding your contract or specific legal situation.

See our full disclaimer here.