Content Creators: Meet Instability AI

Generative Artificial Intelligence is quickly becoming the most transformative force in media and entertainment since the advent of broadband Internet. Content creators now find themselves in an era where the pace of technological innovation is running laps around a legal system that has always struggled to keep up, creating a dynamic and precarious landscape for producing content and managing rights.  

AI models are fundamentally redefining the creative process.  These technologies are not merely tools of convenience; they challenge the traditional boundaries of creativity and production, raising profound questions about authorship – even the social utility of creative labor itself.

The acceleration of technology has always outpaced the law, a phenomenon acutely evident in the context of AI. Our legal system, by design, evolves slowly – through legislation, judicial decisions, and regulatory processes that are deliberate, incremental, and often reactive. Things might be different this time.

It may “only” be the case that copyright law, premised on human authorship, requires its first major overhaul in decades.  However, it’s quite possible this technology may redefine what it means to be creative and thereby force us to have a conversation about intellectual property from first principles. 

Producing Content 

In production, AI’s influence is already deeply felt, transforming how we capture and construct reality. Whether through the precision of camera automation, the creation of virtual environments that seamlessly blend live-action with CGI, or the enhancement of, AI is not just a tool but a collaborator in the creative process, democratizing many elements of high-production-value-storytelling in the way digital cameras and distribution models like YouTube brought so many voices into a truly worldwide creative conversation. 

Color grading, complex 3D environments, digital voice replicas, adaptive soundscape – these advancements do more than streamline workflows – they redefine the role of the artist, shifting the focus from technical execution to conceptual innovation. In this sense, AI becomes both an extension and an augmentation of human creativity, prompting deep philosophical questions about the nature of artistry itself. 

However, with these advancements come significant legal and ethical implications. The law, rooted in the slow evolution of human institutions, is ill-equipped to keep pace with the exponential growth of technology.  

The constitutional mandate to secure rights to authors and inventors “to promote the progress of science and the useful arts,” articulated in Article I, Section 8, Clause 8 of the U.S. Constitution, was conceived over 200 years ago. The Copyright Act hasn’t seen a major overhaul since 1976.  

The dissonance between the pace of technological innovation and legal adaptation is not just a technical or legal issue; it reflects a broader human condition—a reminder that while we can accelerate the pace of innovation, we must also grapple with the enduring limitations of our institutions and the conceptual frameworks on which they were built. 

Midway through a Journey of Instability

A recent lawsuit serves as a canary in this intellectual coal mine.  In January 2023, Stability AI, along with Midjourney and other AI companies, was served a class action lawsuit led by a group of artists.  

The dispute involves prominent AI tech firms who, as the plaintiff artists allege, trained their models using copyrighted works without permission.  In time, the outcome could set new legal precedent for how Fair Use is applied to AI-generated content, profoundly influencing not only how tech companies build their data sets but also how content producers approach the use of AI tools built on those data sets. 

The Southern District of New York’s recent  decision to allow the lawsuit to proceed signals growing legal scrutiny of AI’s use of copyrighted material.  For content creators, this suit will be instructive, but many questions will remain about creating and protecting creative works aided by AI.  

AI in Content Creation – A Matter of Degree

While laws and norms are still developing and rapidly changing, the degree of human involvement in shaping and refining content generated or modified by AI should remain the crucial consideration.  A screenwriter who uses AI to generate suggestions and selectively incorporates those ideas into a script, with substantial human creative input, shouldn’t have concern about retaining authorship of the screenplay. 

Conversely, if AI’s output dominates a piece of content – a script generated with a couple prompts, for example –then the authorship and originality concerns, as well as infringement potential material in the training data, could jeopardize the commercial viability of the material and any production it is based on. 

As generative AI delivers a new suite of soon-to-be-indispensable tools, the question for content creators becomes one of degree. Sticking with the example, a screenwriter could use AI to brainstorm ideas (with the writer’s contributions to the brainstorming session widely variable), to analyze dozens of existing scripts (with the extent of incorporation of those works into any content widely variable), to generate entire scenes (from scratch or with significant human input), or rewrite significant portions of a script (which may be merely editing, proper polishing, or radically altering the material). 

AI is a tool.  And just like a screenwriter could use a pencil to write an Oscar-winning script or to copy the pages of someone else’s material, the use of AI in copyright claims will be an inherently factual question about human behavior. 

We can expect very few bright lines in the interim rules and norms that emerge. 

Practical Guidance for Content Creators Using AI in Film and Television Production 

As AI tools become more integrated into media production processes, content creators must take proactive steps to both maximize creative potential and mitigate legal risks.

Here’s a consolidated guide on best practices:

1.  Engage Legal Counsel Early

The use of AI in your creative process introduces new legal concerns, particularly around copyright and intellectual property. Consulting with an attorney experienced in these areas is crucial. An attorney can provide guidance on the legal implications of using AI-generated content, help assess the risks, and ensure that your project is both legally protectible and not likely to infringe the rights of others. Engaging legal counsel from the start allows you to navigate potential pitfalls and protect your work effectively. 

2.  Document the Creative Process 

Keep detailed records of how AI is used throughout your project. This includes documenting the specific inputs provided to AI tools, the resulting outputs, and any human modifications made. Such documentation is essential for proving the originality of your work, especially if legal challenges arise. Thorough records can demonstrate the extent of human creativity involved, which is crucial in Fair Use determinations. 

3.  Use Abstract or Original Inputs 

When using AI tools, opt for abstract themes or original material as inputs to reduce the likelihood of generating infringing content. Abstract or unique inputs can inspire novel outputs that are less likely to resemble existing works, thereby minimizing the risk of legal issues. 

4.  Avoid Specific References

Steering clear of direct references to well-known works is a key strategy in avoiding derivative outputs. For instance, avoid instructing AI to generate content that closely mirrors iconic scenes or characters. This helps prevent your work from being seen as too derivative, which could lead to infringement claims. 

5.  Opt for Public Domain or Licensed Material

When reference material is necessary, choose content that is in the public domain or for which you have obtained proper licenses. This ensures that the foundational materials you use are legally sound, reducing the risk of infringement. 

6. Vigilantly Review AI Outputs

Always review the AI-generated content thoroughly before it is incorporated into your final project. Assess whether the content is sufficiently original or transformative to avoid legal risks. This review process is critical to ensuring that the final product is not only creative but also legally defensible. 

7.  Stay Informed and Adaptable 

The legal landscape around AI and copyright is constantly evolving. It is essential to stay updated on new developments, court rulings, and industry best practices. Collaborating with legal professionals and industry peers will help you adapt your strategies as needed and continue to use AI tools in a compliant and innovative manner. 

By following these guidelines and working closely with legal counsel, content creators can navigate the complexities of AI in content creation and production environments.