We need to talk.
And let’s absolutely clarify my stance on it first.
Before we begin, let me throw the part of this out that’s important to my career:
I, Joshua E. B. Smith, Author, do not currently use generative AI in my books. I do not use it for my covers, I do not use it for my content. I do use AI-assisted programs to provide some editing of my work, such as Grammarly (before it’s sent to human editors), and some of my advertisement images may or may not (I honestly don’t know) have come from AI-generated “stock photos” masquerading as human-created content.
I say that because if you aren’t an author or an artist, you may not know about the civil war within the creative community between people who think AI is okay and people who think it’s theft. This post is not designed to address that controversy. This post is an educational and editorial post.
My other stance.
My personal views on AI aside (because that’s not the purpose of this blog post), the (not really an opinion) belief is that AI content generation is not going away. Legal, ethical, or moral considerations aside, we’re stuck with it. The cat is out of the bag. At a certain point, I do feel like some creators are going to have to face the idea of, “If I want to continue creating, do I use AI or not?” as a matter of surviving economically.
In short, too many multinationals are investing too much money into generative AI that we can ever hope to get out of the other side of the issue unscathed. I hate to throw the flag, but I’ve paid very close attention to the moves that some of the larger conglomerates (the ‘zon, Google, MS, Nvidia, etc) have been making over the years. Amazon alone has already incorporated AI images into their ad platforms, and that’s to say nothing of their AI-based audio presentations.
That question of, “Do we have a way out?” may be coming sooner rather than later.
This time? It’s courtesy of the US Patent Office.
Let’s talk (US) Copyright.
Honestly, I’d rather not. But this is important, and I don’t know how many people know about it. First things first: I am not a lawyer, I am absolutely not a copyright lawyer, and this is not legal advice. I will never give you legal advice because truthfully, I’m an idiot on some subjects.
But I try to learn, and then teach, when it counts.
In January of 2025, the US Copyright Office kicked out a report regarding, and I quote, “Copyright and Artificial Intelligence,” subtitled, “Part 2: Copyrightability.”
Pretty sure that’s a made-up word so here we go for the rest of it.
Here’s a copy of the actual document. This is a PDF.
Copyright and Artificial Intelligence, Part 2 Copyrightability Report
If I went through the whole thing, it would take a while, so let me just tear through some of the most important tidbits.
TIDBIT ONE:
They punted. In the summary, they suggest that AI issues can be solved without need for legislation (and I don’t care what side of the coin you’re on, we can all agree that’s bullshit).
TIDBIT TWO:
They do point out that this is going to be resolved on a case by case basis. Copyright law is already a ****ing nightmare at best, and that just basically says, “Let a court handle it if you get sued, have fun.” Cool. Just cool.
TIDBIT THREE:
This is a quote: “Copyright does not extend to purely AI-generated material, or material where there is insufficient human control over the expressive elements.”
And then:
“Based on the functioning of current generally available technology, prompts do not
alone provide sufficient control.”
So. Let’s clarify this:
If all you do is input a prompt into Dall-E, ChatGPT, or other AI platform, the ensuing output is not copyrightable. Point blank, end of discussion. If you generate a cute blonde riding a dinosaur and do absolutely nothing to it, you cannot sue someone if they use that image for a purpose other than what you created it for because you didn’t make it.
This itself is actually kinda important. Because you can’t say ‘you’ made it, you don’t have as many legal protections over it. You (may) not even have a leg to stand on if you try to sell it yourself, or put a commercial license on it (ie: here’s a lease to use this image under X terms, like you might find if you pulled a picture off of Pixabay). Again, I am not a lawyer, but that’s my reading and interpretation of how it stands.
But you may notice a very significant problem with that statement.
TIDBIT FOUR (I love typing the word ‘tidbit,’ btw):
“Human authors are entitled to copyright in their works of authorship that are
perceptible in AI-generated outputs, as well as the creative selection, coordination,
or arrangement of material in the outputs, or creative modifications of the outputs.”
Ah, sh*t. And there it is. The official stance of the US Copyright Office. It’s not black and white. It does kick back to the earlier statement that it needs to be resolved on a case-by-case basis.
Let me add a bit to this from page 24 (technically 32) of their memo:
“Generating content with AI is often an initial or intermediate step, and human
authorship may be added in the final product. As explained in the AI Registration Guidance, “a
human may select or arrange AI-generated material in a sufficiently creative way that ‘the
resulting work as a whole constitutes an original work of authorship.’”126 A human may also
“modify material originally generated by AI technology to such a degree that the modifications meet the standard for copyright protection.”
‘Human authorship’ is the phrase to read there.
They explain this in-depth but I’m trying to help you get an overview without your eyes rolling out of your skull. So what does this mean? Why do I sound a bit pissed?
The Ultimate Ruling
What that last tidbit means (and it’s not the end of the memo, there’s a bit more that I’m not diving into) is that if I go to Dall-E and have it spit out an image of a dwarf and a human standing in front of a giant cavern, that image is not copyrightable. I cannot expect to have copyright protections under it. You could use it to advertise a can of soda and I would absolutely be powerless to stop you even though I’m the person that input the prompts and paid to use the software and refined the image a few different generations, et al.
Or, I could go to ChatGPT and write out a novel about a succubus f*cking her way through the NYC subway system with the intent to sell it and then you could copy it word for word and sell it yourself and I would have zero legal recourse in terms of going after you for a copyright violation because, and this is important, I did not provide any substantial modifications or provide substantial input, despite being the originator of the prompt. The prompt alone does not generate copyright in the US.
But who’s really doing that anyways?
Yes, I mean, some people are. They just copying and pasting and putting their name on it and waving their arms around and going LOOK WHAT I DID! and a few people are cheering and going, “WOW WHAT A COOL CAT PICTURE!” and honestly, I’ve done that. Because sometimes it really is a funny cat picture.
However, let’s talk about using a generative AI image – or five – and combining them together. Let’s talk about taking an image, adjusting a ‘substantial’ amount of it (and if you want to know the definition of ‘substantial,’ good luck; this is where the courts have to decide if enough modifications have been made to any given work), and then trying to copyright it.
Did you take that picture of the blonde on a T-Rex from earlier, overlay it against a photo you took of a mountain, add a bunch of text, change some of the lighting/shading/blending, and decide it made an epic book cover for Tonya and the Tyrant-Rex: A Dino-Rotica Novel?
You’ve likely now added substantial amounts of human adjustments to it.
And that likely means you now have the US Patent Office’s approval (or grounds to claim it).
How does this affect us, as authors?
And this is the literal billion-dollar question.
Again, I am not going to sit back and opine about my feelings in regards to generative AI from a moral or ethical stance (from my tone, you can probably assume a few aspects of it). I barely passed ethics in college and I quite frankly didn’t pass it in most of my adult life. My concern right now, first and foremost, is how it affects my business. To a degree, how it affects yours.
What this ruling does is very clearly draw a very fuzzy line for how AI generated content can be used as it stands today as far as the Copyright Office is concerned. It does not address the broader legal implications of using generative AI and if you can be sued by people who may have had their work used to train generative AI platforms. We do not know the answers to these questions. The courts in the US (and I have no idea how the courts outside the US) have not, to my knowledge, passed rulings on this topic yet.
This ruling says that if you substantially edit a work created with the assistance of generative AI, it can have a copyright issued to it.
This is – or was – a barrier. It is – or was – a very important question to determine if we could make output and claim it as our own. If we could stand up and say, “I did this, so you, the courts, you have to protect me.”
There was a hope, I think, that gen-AI would fizzle out. I think that hope was severely misplaced, and thought as much when the engines were first unleashed on the world. I think that with this ruling it enshrines the fact that no, gen-AI is still here. Gen-AI is only going to grow.
And more importantly, Gen-AI is going to continue to be used by people to make money.
I fear that the question that content creators have to address now is an ethical one more than a legal one. The vast majority of us are not in a position to go to bat with the legal ramifications of, “Is generative AI using stolen content, is the end result fruit of a poisoned tree, can copyright holders sue the companies and platforms that trained their engines in ways that were not consented to ?” and I say that because Google is literally building nuclear reactors to handle the problem posed by AI electricity consumption.
(That’s not BS. Here’s a link:
https://blog.google/outreach-initiatives/sustainability/google-kairos-power-nuclear-energy-agreement/ )
I have to figure that if plutonium is going to be involved, then The Money has already decided the answer to the question of legality. With one big barrier gone, it further breaches the dam. The floodgates were already open; now the wall has been sapped.
How does this ruling affect us?
If you use gen-AI, you now have a guideline to determine how you can copyright your works, and a guideline that says what you can do with AI to develop your works (regardless of what ‘type’ of work it is). You now have some legal protections that you didn’t necessarily have before.
If you don’t use it, it’s allowing more competition to enter the market because it removed one of the last hurdles.
The last question: Does it matter?
As I stated at the start of this blog post (which now feels like an essay), I don’t use gen-AI for my works. I can safely say that today, for the purposes of my business, it does not directly affect me.
It indirectly matters because it creates more competition on the market. It also indirectly matters because now you have to ask if you can afford not to use it. Can you, or your brand, afford not to throw ideas at ChatGPT and get an outline for your next novel? Can you, or your brand, afford not to cut costs by generating parts of a cover for your next title?
Granted, yes – that disregards the questions of, “Am I willing to get involved in the arguments about the moral use and be willing to be labeled as an AI creator, and the negative reactions that will involve?” Because hey: that’s a you problem and I am, very bluntly, not going to get involved. There are pitchforks on one side of that argument and I am not putting myself between your brand and those stabby things.
You’re on your own with that issue, kiddo.
That said, I’m always in competition. My ads compete for clicks. My books compete for the money in your entertainment budget. My release schedule is a thimble in the flood of books released every day. Every time I put out a book I’m in a fight between books about werewolves, werewolves having sex with vampires, space marines, cowboys, and honestly, even money you might spend on Wrestlemania tickets. I want your money. Everyone else writing or developing a show on Netflix or selling a video game or selling doughnuts also wants your money.
I create products that are strictly optional that nobody needs. As a result, I am in competition with your money with literally everyone from Shell Oil to Mattress Warehouse to Vince McMahon.
So for me, extra books being written with gen-AI are just more noise in the background. I still have to stand out in the crowd.
For you? I don’t know. Only you can answer that question.
But I would strongly, strongly, ask that you ask yourself that question sooner than later.
~Joshua E. B. Smith, Author
Feb. 2, 2025
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