Welcome to the latest incarnation of the Re:Create Recap, a newsletter about fair copyright policy. We’re excited to get back to bringing you a byte-sized morsel of copyright goodness in your inbox. As the Executive Director of Re:Create, I keep a close eye on the copyright landscape, and I’ll use this space to share trends or quick takes on what I see. This week, a quick note on AI legislation and what I call the copyright switcheroo. It’s not a dance sensation, but it is definitely sweeping the nation – or at least the nation’s capital.
As lawmakers begin to reckon with AI, they’ve identified a few seemingly non-controversial issues that merit exploration and, possibly, legislation. Misinformation is one example: the ease of creating realistic-seeming sound, images, and video with AI may make it easier for bad actors to mislead people, whether about serious things like elections, or about more mundane things like celebrity product endorsements. Non-consensual intimate images are a troubling phenomenon that misuse of AI tools can facilitate, and they do real harm to ordinary people as well as to celebrities. Perpetrators are discovering that these practices already violate multiple state and federal laws. If additional measures are needed, options include technical standards to mark or detect synthetic media or updates to laws relating to personal rights of privacy and publicity. But something weird seems to keep happening when bills about these topics get drafted: they morph into copyright laws.
NO AI FRAUD, NO FAKES, and now the COPIED Act – all of them claim to be protecting the public from misinformation or protecting individuals from injury by misuse of their name, image, or likeness, and yet somehow they all pivot instead to creating new copyrights, without pesky fair use rights for the public. This is clearly a great outcome for big record labels and other corporate interests that would like to buy and sell not only the works of creative people, but their very personhood. And it’s just as clearly an awful outcome for any creative person whose work critiques, comments on, educates about, or otherwise engages with popular culture and real people, because gatekeepers would have a new way to censor you if they don’t like what you say, or just to charge an outrageous license fee, whether they deserve it or not. (Incidentally, that’s why these laws are also clearly unconstitutional.) What’s unclear is what any of this has to do with protecting the public from misinformation, or protecting individuals from having their personae misused. That’s the copyright switcheroo: a huge win for certain businesses built on buying, selling, and controlling art and artists, a huge loss to creators, and a wasted opportunity to address the real issues that arise from misuse of AI.