Artificial intelligence – the law is racing to keep up with technology.

​Ed Sheeran has been defending himself in court against claims that he copied Marvin Gaye’s classic Let’s Get It On for his 2014 hit Thinking Out Loud.  And while the songwriter had a successful outcome, copyright experts say the real challenge that lies ahead for Ed and others like him is not from fellow songwriters, but from the robots…

Artificial intelligence, or AI, has been dominating headlines in recent months.  Students are said to be passing exams by using ChatGPT; a photographer won an international competition with an AI-generated image[1]; and with the coming of age of generative AI, some 75% of companies say they will be adopting it in some form, according to latest research from the World Economic Forum.

Given the speed at which AI is being developed and adopted, the march of the bots is surely set to be challenged in the courts soon.

Streaming platforms last month removed a song that used AI interpretation of real-life performers Drake and The Weeknd.  The song went viral but, shortly afterwards, the creator, who is known as @ghostwriter, said the song Heart On My Sleeve was created by AI that had been trained on the artists’ voices.  The song was removed swiftly by streaming platforms, including Spotify and Apple Music, on copyright grounds.

Elsewhere, Getty Images has taken legal action against one of the emerging text-to-image AI software companies. Users enter instructions for an image to be created by the software, and Getty is arguing that millions of its images have been used to train the AI, so infringing Getty’s copyright.

Unlike Getty, the image library Shutterstock is actively embracing AI.  It has chosen to partner with developers for AI learning and is offering customers access to AI-generated images on its platform, saying this offers greater confidence as it provides a user licence for such images.

“Whether the Getty case or the @ghostwriter AI-created song prove to be a breach of copyright is yet to be decided, but for now the law is racing to catch up with technology,” said Lucy Rundle, a trainee solicitor within the Company and Commercial team at Wollens.

“One of the promises of generative AI is to provide creative output for even the most un-creative, but for now it may equally be a doorway into a quagmire of legal complication.  It’s not just the copyright issue that has to be considered, but also recognising that output from generative AI has been shown to be factually incorrect, or even fabricated, in a number of cases. The quality of the training data and the way in which a request is framed can create very different results. 

[1] Boris Eldagsen submitted an AI-generated image titled ‘Pseudomnesia: The Electrician’ to the Sony World Photography Awards 2023 and won first prize in the creative open category, later declaring his action and refusing the prize.

“In one instance, a regional mayor in Australia was said by ChatGPT to have been involved in fraudulent activity, when he had actually been the whistleblower in the case and it was reported that he was considering a defamation claim against developer OpenAI.”

[1] Boris Eldagsen submitted an AI-generated image titled ‘Pseudomnesia: The Electrician’ to the Sony World Photography Awards 2023 and won first prize in the creative open category, later declaring his action and refusing the prize.

Lucy added:  “The jury is out on the bigger picture as to whether AI is a glorious opportunity or an existential threat to society.  We’ve seen Elon Musk speak out against its wholesale adoption, and Geoffrey Hinton, the so-called godfather of AI, resigned from Google saying he now regretted his work.   

“For now, companies and individuals may be well advised to keep a tight rein on their creative use of artificial intelligence.”

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