This article is part of DWT's The Generative Slate series. It explores the use of generative AI in the production and distribution of content. Read our first installment here.
It doesn't appear that AI is writing episodes of prestige television, but it could be playing a role behind the scenes. While the WGA strike focused on AI as a potential threat to creativity, the deal that followed did not ban its use in film and television. And by all accounts, some writers are relying on AI for everything from idea generation to outlines to full scripts.
This collaboration raises questions from a copyright perspective. The U.S. Copyright Office has stated that only human creativity is eligible for protection. If AI-generated material makes its way into a pitch, treatment, or script, it could potentially impact the copyrightability of the work. The more significant the AI contribution, the greater the risk that the copyright of the work will be called into question. Using AI to brainstorm ideas, generate high-level concepts, or spark creative direction likely will not raise concerns about copyrightability. But if significant AI-generated expression appears in a work, its legal status becomes more complicated.
In the United States, there is currently a duty to disclose the use of AI when registering a work with an "appreciable" amount of AI-generated material for copyright. The U.S. Copyright Office has already canceled registrations where material contributions from AI weren't properly flagged. This is true even where the author used complex, iterative prompts to achieve the desired output. (Although query whether recent changes at the U.S. Copyright Office will have an impact on this trend.) Content creators should keep these recent developments in mind to the extent their works include an appreciable amount of AI-generated material.
And then there's chain of title. If a project contains AI-generated material that no one discloses—or that no one owns—it has the potential to undermine the value of the property. Buyers may think they've acquired a script that's fully protectable, only to learn during due diligence or distribution that parts of it may not be. As courts and regulators continue to grapple with the protectability of AI-generated works, the chain-of-title diligence process will likely involve assessing the role of AI in the creation of the content at issue.
Writers are the heart of storytelling in the entertainment industry. But studios should have an understanding of the use of AI in their creative pipeline to ensure they can own, register, and protect their intellectual property. In the meantime, we will continue to monitor generative AI's impact on the production and distribution of content, including the protectability and registrability of human-authored content that contains AI-generated material.
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