Despite the fact that copyright law is grounded in human authorship and dates back to a Supreme Court ruling from the 1880s, a number of instances employing cutting-edge AI technology are currently contesting that rule of law. At the Risk Management Issues Committee meeting held during the REALTORS® Legislative Meetings in Washington, D.C., senior counsel Chloe Hecht of the National Association of REALTORS® shared information on cases for Realtors to keep track of.
In one instance, plaintiff Stephen Thaler is suing the United States Copyright Office (in Thaler v. Perlmutter) because it disallowed him copyright on a picture created by his artificial intelligence program, the Creativity Machine.
He asserts that he and the AI generator agreed to create it as a work-for-hire. “Thaler argues that human authorship isn’t required and, therefore, his work should be entitled to protection,” Hecht said, despite numerous denials by the Copyright Office. She noted that Thaler has said he will, if necessary, challenge his case to the Supreme Court.
In another instance, a writer and artist used AI to produce graphics and write the text for a graphic novel. When it was discovered that the images were AI-generated, the Copyright Office first awarded her protection but limited the registration to the text and image arrangement. However, the author insists that she didn’t merely enter a prompt. She grabbed the photograph and instructed AI to modify it till it reflected her preferences.
The stock photo industry behemoth Getty photos sued Stability AI Inc. last year for exploiting 12 million Getty photos and their associated metadata to train its system, and Hecht concluded by describing this instance. In order to train their system, an AI developer uses the work of others. This allows AI to create new works based on the originals.
For real estate professionals and others wishing to exploit this developing technology, the instances raise several questions. However, Articles 2 and 12 of the Code of Ethics provide direction.
Article 2 holds that “REALTORS® shall avoid exaggeration, misrepresentation or concealment of pertinent facts relating to the property or the transaction.” Article 12 says, “REALTORS® shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing and other representations.”
It is against those two Articles to use AI to repair a structural break in a wall, but it is acceptable to remove a hose and bucket that were unintentionally captured in a photo.
Three things to remember to use AI as safely as possible:
- Always check the accuracy of articles produced by AI.
- Avoid utilizing AI to produce a work that you intend to be able to defend.
- Never presume that any content from a third party was produced by AI and is thus freely usable. Always obtain written authorization before using someone else’s creation in any fashion, and keep the authorization letter.