In the wake of class action lawsuits against generative artificial intelligence (“AI”) systems and general anxiety surrounding “artificial intelligence and the perils of plunder,” it’s time for creators and licensees alike to batten down the hatches.
Modern AI, powered by what is known as “large language models,” is able to churn out original artwork, text, music, and even dubious legal advice. It works by processing and “learning” from an expansive dataset of material. In human terms, imagine if all you had to do was pop into the Louvre for a visit and you could leave with the ability to paint in the style of Michelangelo or da Vinci.
One of the concerns surrounding this generative AI model is the input is largely comprised of copyrighted materials, and the original authors are not all eager to allow AI bots to feed on their work. While we await legal guidance and precedence to help decipher if/when AI learning is considered infringement and who owns the resulting output, we can proactively update our contracts and forms to incorporate or limit AI uses.
If you are not sure where to start, the Authors Guild (“AG”) has provided a tremendous resource. AG, America’s oldest and largest professional organization for writers, published suggested model contract clauses for use in publishing and distribution agreements. This language came as a response to concerns about publishers and platforms adding clauses to their terms that allow them to “data mine books for use in training AI models that will inevitably compete with human-authored works.” Although geared toward authors, the suggested language could easily be adapted for use by musicians, photographers, and other creators as needed. The model clauses read as follows:
Prohibition on Use of Work in AI Learning
For avoidance of doubt, Author reserves the rights, and [Publisher/Platform] has no rights to, reproduce and/or otherwise use the Work in any manner for purposes of training artificial intelligence technologies to generate text, including without recommended limitation, technologies that are capable of generating works in the same style or genre as the Work, unless [Publisher/Platform] obtains Author’s specific and express permission to do so. Nor does [Publisher/Platform] have the right to sublicense others to reproduce and/or otherwise use the Work in any manner for purposes of training artificial intelligence technologies to generate text without Author’s specific and express permission.
Clause Relating to Authors’ Use of AI
Author shall not be required to use generative AI or to work from AI-generated text. Authors shall disclose to Publisher if any AI-generated text is included in the submitted manuscript, and may not include more than [5%] AI-generated text.
Audio Book Clause (For Use With Audiobook Grants)
With respect to any audiobook created or distributed under this Agreement, Publisher shall not permit or cause the Work to be narrated by artificial intelligence technologies or other non-human narrator, without Author’s prior and express written consent.
Translation Clause (For Use With Grants of Translation Rights)
With respect to any translations created or distributed under this Agreement, Publisher shall not translate or permit or cause the Work to be translated into another language with artificial intelligence technologies or other non-human translator, without Author’s prior and express written consent. For purposes of clarification, a human translator may use artificial intelligence technologies as a tool to assist in the translation, provided that the translation substantially comprises human creation and the human translator has control over, and reviews and approves, each word in the translation.
Cover Design Clause (For Book Contracts)
Publisher agrees not to use AI-generated images, artwork, design, and other visual elements for the book cover or interior artwork without Author’s prior express approval. For purposes of clarification, a human designer may use artificial intelligence technologies as a tool to assist in the creation of artwork for the Work, provided that the human artist has control over the final artwork and the artwork substantially comprises human creation.
If you are not the drafting party, be vigilant in your review of contract terms that may allow your work to be used for AI training — it can be snuck in without explicitly using the phrase “artificial intelligence.” For example, AG advises authors to flag contract language that might allow the licensing party to use the work for “internal purposes,” “research,” or “data mining.” These provisions could be used to train generative AI and would therefore duplicate your work. Even if you are comfortable with your working being used for this purpose, consider whether that additional use should require a higher license fee or trigger an opportunity to renegotiate terms.
While we do not know the full extent of AI’s future impact on the creative market, we know enough to proactively integrate AI provisions into our contracts. Whether you are an artist like Grimes who encouraged the use of her voice in AI-generated works or you’re more like Nick Cave who dismissed AI songwriting as “a grotesque mockery of what it is to be human,” the scope of your intellectual property license should reflect your intentions.