AI is not a shortcut to get past copyright law

If you haven’t heard of ‘AI slop’ yet, you will soon – because you’re about to be swimming in it. So much so that I’ll be surprised if AI slop (or simply ‘slop’) isn’t the word of the year. AI slop (says Wikipedia) is “low-quality media made with AI characterised by an inherent lack of effort and is currently being generated at an overwhelming volume”.

By now, you may have seen how easily AI image generators can conjure up images. Want to see a cool elven warrior princess? Or need a snazzy new logo? Just jot down a couple of lines as the design brief.

Now, with the recent launch of Sora 2 in the USA, we are on the threshold of being deluged by user-created video content (such as footage of Elvis posing with Freddie Mercury, or other unlikely famous combinations) which is already swamping TikTok and Instagram Reels.

Douglas McLachlan is a Partner, Anderson Strathern

This matters because generative AI tools (like Midjourney, DALL·E, and ChatGPT) are being used increasingly by small businesses, and can be seen as quick, cost-effective solutions to various issues.

In law, we can see one glaring problem with rapid AI content creation: if what you produce using AI mimics existing intellectual property or image rights, even unintentionally, you could be the one on the legal hook.

Don’t be misled by headlines. Although Midjourney, is being taken to court in the USA by Disney (who allege AI image-generation tools can produce output strikingly similar to well-known characters and franchises, and that the companies are aware of this), that won’t always be how things work going forward. The IP owners may soon turn their attention to business users.

Most AI models are trained on vast data sets scraped from the internet. However, these companies rarely disclose exactly what content they’ve used.

To be clear, generative AI tools don’t delve into their memory banks to select something they’ve seen before. But they might offer up a “remix” of it. That means there’s no easy way for a business owner to know if this is under copyright. It might look original, but legally it could be derived from protected material.

This legal grey area is dangerous territory for start-ups that might not have in-house legal teams or IP specialists on hand. However, in law, ignorance is not a defence.

Startups often use AI tools to build their brand identity quickly and affordably, but if this content is challenged by a rights holder, it can be fatal for the business. IP infringement can also lead to loss of digital presence, such as social media accounts or digital listings.

In terms of practical steps for SMEs, I’ll start with the easy one: don’t try to attract traffic to your business by using fake footage of a celebrity endorsement (dead or alive!)

Also, avoid asking AI to create content in the style of specific copyrighted works or characters – and perform an image search. This method isn’t guaranteed, but if the artwork looks similar to something else on the internet, be careful.

Use reputable tools; stick to platforms that offer clear commercial licensing, but still exercise caution.

Finally, get legal advice early; a quick consultation with an experienced solicitor can avoid headaches down the line.

AI is a powerful tool for innovation and growth, but it’s not a shortcut past copyright law. Understand the risks, stay informed, and don’t assume the big lawsuits overseas can’t affect you. In the eyes of the law, it’s often the user, not the toolmaker, who pays the price.

Douglas McLachlan is a Partner, Anderson Strathern