Copyrights have baffled beginning authors in America for one-hundred, twenty-seven years. Founded in 1897, the United States Copyright Office has been issuing copyrights to various artists for their work.
I am presenting a basic outline editors and authors need to know regarding copyrighted material.
What is protected by copyright?
- Books
- Movies
- Artwork
- Music
What is not protected by copyright?
- Facts and ideas
- Creative works that aren’t fixed (recorded)
- Lists
- Titles, names, and slogans
- Works with no human author
- AI gets no copyright protection
- If you don’t know the end result, the copyright office won’t protect it.
Copyright Basics
- Make sure your content is original, and/or not previously copyrighted.
- Anything published before 1929 is in public domain.
- Government works are public domain (except post office)
- Works published from 1929–1978 may or may not be public domain, so you need to look them up to be sure.
- Works created from 1978 onward are NOT in public domain.
- Unregistered copyrights may not work. Simply using the copyright symbol © may work when you find someone using your work online. You do have rights, but they’re not enforceable in court. But a judge will always rule on the side of a registered copyright holder.
AI and the Fair use Test
Fair use gives authors the ability to use copyrighted material without permission for purposes such as criticism, comment, news reporting, teaching, or research. Since the United States Copyright Office hasn’t issued official laws governing AI, any fair use disputes involving AI are currently only settled in the courts. They use a four-fold method to determine if a work created entirely by AI or includes AI-generated material is considered fair use. All four of these points must be present for the courts to determine if a copyright suit is legitimate.
1. Purpose and character of the use
Is it commercial or noncommercial, and is it transformative? That is, does it change the work into something different than the original?
2. Nature of the copyrighted work
Is the work more creative or more factual? Using a more creative or imaginative basic work is less likely to support a claim of fair use, while using a factual work would be more likely considered a fair use claim.
3. Amount and substantiality of portion used in relation to the work as a whole.
This point considers the amount of copyrighted work the author is using. Even when quoting the Bible, copyright rules preclude someone from using too many verses as stated on the Bible’s copyright page.
4. Effect of the use on the potential market for or value of the copyrighted work.
This point considers whether the use may harm the current or potential markets if the use were to become widespread. If the use harms the copyright owner’s current or potential market, then the courts will rule against fair use. This has been used in cases where someone uses AI to create something, and the original copyright holder finds out about it and sues the author who used their material through AI. Along with the first point, this is one of the most important in the fair use investigation.
Since the courts have sometimes overlooked one or two of these tests in this decade, at this time, I strongly suggest that you only use material you personally create and not include any work by someone else, including AI, except for material for which you secured written permission from the copyright holder.
