Tips to Manage Risk From Generative AI

As a lawyer representing creative clients, I am excited, interested and anxious about the ways in which Generative AI—tools such as ChatGPT, Bard, Bing and Claude—will shape our work and lives. Because Generative AI tools are so powerful, my own personal view is that businesses should strongly consider engaging and experimenting with Generative AI, while simultaneously taking steps to understand and manage risk.

Here are a few tips and observations:

• You are still responsible for your work product. You should fact-check, proof and perform other clearance actions, as the output of Generative AI may infringe the copyright or trademark rights of others, be inaccurate or defamatory. There is no such defense as “The AI told me it was OK.”
• Not all Generative AI vendors are the same; choose carefully. For example, as of October 2023, Shutterstock has an AI image-generation tool that is trained on images owned or licensed by Shutterstock, reducing the risk that the output will infringe the copyright of others. Midjourney, by way of contrast, appears to have trained on images copied without permission, creating greater legal risk that the output will include infringing elements.
• Raw output of Generative AI is not copyrightable. A work (text, images, code) requires a human author to be copyrightable. The U.S. Copyright office has held that the unmodified output of Generative AI is not copyrightable, not ownable, not protectable. This means other people could take your AI-generated work and use it or change it, and wouldn’t need to ask permission or pay for a license.
• No AI Allowed. Some clients and brands are already adopting policies and contracts prohibiting the use of Generative AI by their vendors, developers and agencies.
• Consider a guideline or policy. Consider adopting a Generative AI use guideline or policy that reflects your own organization’s industry, anticipated use cases and risk-tolerance.

My final tips: stay-tuned, as the landscape is changing daily, and if in doubt on any of these items, consult your lawyer.