Using AI Can Be Risky
Both training and using AI services--especially Artificial Intelligence-- can put you at risk for copyright, right to privacy, or right of publicity lawsuits. Rest assured that there are many ways that you can minimize the risk of assuming liability. These mitigations include an understanding of fair use, "substantial similarity", and what kinds of things have or haven’t been settled legally regarding the use of Artificial Intelligence.
Fair Use
Uses of Artificial Intelligence that fall under the fair use provision are protected by law. It's important to understand, however, that the principles of fair use aren't a checklist of things to be done. Rather, they are factors that are weighed holistically by a judge to determine whether a specific use falls under that category. Careful analysis of the fair use factors can help you make an educated guess about whether a use is fair and can help you assess copyright risks associated with that use.
Those factors are:
To better understand the principles of fair use, the BYU-Idaho Copyright Office has extensive resources available to understand each of these principles and their legal subtleties.
Risk Factors
The table below outlines factors to consider when establishing whether or not the Artificial Intelligence-related activities warrant copyright infringement.
| Risk Factor | Effect | Example |
|---|---|---|
| Non-profit use | Lower Risk | Creating an image to put on the wall of your room |
| Educational use | Lower Risk | Generating text to use as inspiration for an assignment |
| Minimal distribution | Lower Risk | Sharing an image with classmates or friends |
| Moderate distribution | Higher Risk | Posting generated content online |
| Not knowing the source of training data | Higher Risk | Creating a work of art using an AI service that uses copyrighted pieces of art in the training data |
| Imitating a specific piece of work | Much Higher Risk | Trying to imitate Harry Potter |
| Not following terms and conditions | Extreme Risk | Publishing content in a way that is expressly forbidden |
| Vibe Coding / Persona Imitation | Much Higher Risk | Prompting AI to “write an app in the style of [Specific Person]” or mimicking a unique proprietary software architecture |
Substantial Similarity
Substantial Similarity refers to the degree of similarity between two works that is significant enough to conclude that one work may have been copied from the other. Whether or not this similarity is intentional, it is an important legal concept to be aware of. Because an Artificial Intelligence service could produce something very similar to an already existing work, this is an important issue to consider. This standard is subjective as there is no set rule determining how much similarity constitutes what is “substantial”. Courts assess this on a case-by-case basis. In the context of “vibe coding,” substantial similarity may include replicating the unique logic flow, user experience “vibe,” or specific structural patterns of an existing application.
Right of Publicity
Another standard to consider when discussing infringement is Right of Publicity. This idea states that people have a right to their own name, image, voice, and likeness, and it is up to them to determine how those aspects are used. Even though there isn’t a federal law protecting this right, several states have passed legislation in this category. For example, if you created an image that looked very similar to a celebrity, or used AI to specifically mimic the unique professional style and persona of a well-known creator to build a tool, that could result in a lawsuit.
Copyrighting Your Work
The output from an Artificial Intelligence service is not currently copyrightable. The United States Copyright Office does not deem the level of human authorship to be sufficient for copyright eligibility. That being said, if you create a base image using Artificial Intelligence and make significant additions or edits, those additions or edits could be copyrightable if they are sufficiently creative. The base Artificial Intelligence image, however, would still not be copyrightable.
If your project relies on “vibe coding”—where the AI performs the heavy lifting of architectural design and coding based on natural-language prompts—the resulting software may not be eligible for copyright protection.