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Helen Todd is co-founder and CEO of Sociality Squared and the human behind Creativity Squared.
Derrick L. Maultsby Jr. is a Senior Associate Attorney at Frost Brown Todd

Ep20. Derrick L. Maultsby, Jr. : AI, IP & the Law — Oh My!

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Ep21. Karen Palmer: A Message About A.I. from the Future

Ep 20. AI, IP & the Law — Oh My! Navigate the Legal & Ethical Landscape of Generative Artificial Intelligence with Tech Attorney Derrick L. Maultsby, Jr. 

What are you really agreeing to when you sign up for ChatGPT? Will Europe continue leading the way in protecting citizens’ digital rights? And should business leaders think twice before incorporating large language models into their operations?

On the latest episode of Creativity Squared, tech attorney Derrick L. Maultsby, Jr. meets us at the intersection of A.I. and law to offer his perspective on the evolving legal landscape for creatives and businesses alike.

Derrick is a Senior Associate Attorney at Frost Brown Todd where he is a member of the Data Digital Assets and Privacy, Corporate and Intellectual Property practice groups, and is one of the few Black male attorneys working in this space in the country. He specifically helps coordinate the firm’s efforts on artificial intelligence, digital assets, and web3. Derrick has been invited to speak on various topics of law and technology at conferences and universities across the country. 

Derrick is also committed to creating a more equitable and inclusive environment within his law firm by serving on the firm’s Diversity Equity and Inclusion committee. In addition to being on the Regional Advisory Board of Venture for America, Derrick also serves on several community boards including his role as Vice President of the Duquesne Black Alumni Network Board. 

In 2021, Derrick was named a “Trailblazer in the Law” by the American Lawyer Magazine and during the Summer of 2022 he was named a “Lawyer on the Fast Track” by the Legal Intelligencer. Most recently, Derrick was named a “2023 Rising Star” by Super Lawyers and a 2023 “Ones to Watch in America” by Best Lawyers. 

Episode 20 does a deep dive into the current legal landscape around generative artificial intelligence. While nothing discussed is legal advice, both creatives and business leaders alike will learn tips to safeguard their intellectual property and harness A.I. ethically to grow their businesses.

Find out why Derrick looks to consumer privacy and our European friends for regulatory framework parallels, what we’ve learned from the Zarya of the Dawn case on A.I. art copyright, and how creatives can protect their IP, including actors when it comes to scanning their likeness.

You won’t want to miss how to ethically navigate generative A.I., IP, and the law.

What Businesses Need to Know About Using A.I. 

When ChatGPT first hit the scene, many rushed to experiment with the novel technology before reading the fine print. 

Derrick cites the viral tale of caution in which a lawyer had to admit that they used ChatGPT to write a legal brief that turned out to reference court cases that the A.I. completely made up. These “hallucinations” are a major chatbot issue. Derrick says copyright is another issue that creatives and businesses should be careful to navigate when using artificial intelligence. According to ChatGPT’s terms of service, all input is fair game for training, and they make no guarantee that the system’s output will not contain copyrighted material. So there are potential pitfalls for creatives and business at both ends of a large language model. 

Derrick says that content owners shouldn’t input any proprietary material that they wouldn’t want to see included in somebody else’s A.I.-generated work. At the other end, Derrick suggests that nobody should rely on A.I. output as the sole or major component of a commercial product, in case it quotes copyrighted work without attribution or simply turns out to be false. OpenAI’s terms of service state that it’s the user’s responsibility to verify that the information they receive from ChatGPT doesn’t contain copyrighted material.

They openly say that this information can be inaccurate, and it’s your job to verify its accuracy.

Derrick L. Maultsby, Jr.

Some A.I. solutions are addressing this by offering business licenses with greater data protection. With any A.I. solution, though, Derrick says that proactivity is key. He’s already assisted some firms to develop A.I. usage policies that get out ahead of how employees may encounter A.I. in the workplace. He says that an effective policy should empower employees to improve their efficiency, while protecting sensitive information. 

Data Privacy and A.I. Regulation in the EU and U.S. 

As Congress and state legislatures ramp up to address the legal gray areas for A.I. usage in the U.S., Derrick discusses how Europe is once again leading the charge to regulate innovative new technology. 

Derrick started out as a data privacy attorney during what he calls the “renaissance of consumer privacy.” In the mid-to-late 2010’s, the European Union was enshrining a collection of digital rights for its citizens through the General Data Protection Regulation (GDPR). 

A critical component of the Europeans’ legal framework is the idea that companies worldwide are subject to the same restrictions on collecting data from European users. So companies headquartered in jurisdictions with less robust digital privacy laws can’t skirt around the GDPR if it wants to serve its product to European users. 

It didn’t matter where you were as a business; the consumer carried the law in their pocket. And that’s why it was such a phenomenon.”

Derrick L. Maultsby, Jr.

The GDPR inspired other countries and U.S. states to enact similar digital privacy laws. In the U.S., digital privacy regulation is a patchwork of various state laws. Multiple federal bills seeking to establish national data privacy laws have stalled in Congress. 

Now the EU is again poised to influence how the world’s governments regulate the newest impacts to our digital lives. Derrick discusses the EU AI act, which has been drafted and is currently under review by EU-member states. 

The EU AI act would require a review of generative A.I. systems before commercial release, ban real-time facial recognition, prohibit A.I. systems designed to manipulate children, and establish a method for classifying the risk of A.I. systems.

And just like before, Derrick says U.S. states are following suit. New York, for example, has already passed a law prohibiting businesses from using A.I. to make hiring decisions. Derrick says he expects the pace of lawmaking to pick up as the EU solidifies their framework. 

I’m excited to watch it. I think the similarities are there from a political and structural standpoint in just how the chips will fall.”

Derrick L. Maultsby, Jr.

Like the GDPR and laws that followed, Derrick says that the focus of A.I. regulation should be on transparency, respecting customers, and respecting their ownership of their data. Derrick predicts that the A.I. companies striving to develop and distribute their product in an ethical way right now will be better off later when regulations arrive. 

Navigating A.I. Legal Issues for Creatives

Can you copyright a work if you have an A.I. help you produce it? What will happen to your personal brand if A.I. can clone your likeness? How will A.I. skew the power balance between companies and creators? 

These are issues that Derrick says he is already encountering with his clients, including models, influencers, and artists. 

One of the most significant cases to come up recently is a comic book creator’s battle with the U.S. Copyright Office (USCO) to obtain rights for her work, Zarya of the Dawn. Creator Kris Kashtanova used the A.I. image generator Midjourney to illustrate the graphic novel. When she filed for copyright, she originally received full protection of the entire work. But after a secondary review, the USCO decided to rescind protection for the book’s A.I.-generated images on the grounds that there was too much “distance” between Kashtanova’s input and the output images. The USCO compared the use of A.I. image generation to hiring an illustrator, in which case the illustrator would hold the copyrights for the images, not Kashtanova. 

The current stance is a case-by-case analysis, which is great. I think that shows that the authorities understand you need to analyze the usage of generative AI in each case, to really know what human element existed in the final product.”

Derrick L. Maultsby, Jr.

Derrick says that this case shows how our understanding of creative ownership over A.I.-assisted works is evolving. As institutions like the USCO analyze more works, Derrick says that understanding will likely evolve further. 

As A.I. matures, companies such as Adobe are spearheading efforts to be able to trace the provenance of digital creations. Through such initiatives, Derrick speculates that creatives may achieve greater ability to prove their works are human-created and deserving of protection. 

But what about when you are your creative work? Hollywood has been grappling with this question since news reports this year revealed how production studios scanned actors’ bodies for reasons not fully known. 

For Derrick, the number one question is “what does the contract say?” Members of the Screen Actors’ Guild, for example, never had contracts that contemplate what’s possible now with synthetic A.I. avatars, the metaverse, and voice cloning. 

One thing that Derek doesn’t think will change very much is the power struggle between a performer and their employer over the rights to their likeness on-screen and off. With experience from both sides of the negotiating table, Derrick acknowledges how companies will try to establish their contractual ownership of a performer’s likeness in the broadest terms possible. That might make it easier for a company to get away with using that likeness beyond the scope of what the performer thought they permitted. 

“I think right now, creatives understand the risks and possibilities that are out there. Empowering yourself to look at those agreements is really, really important.”

Derrick L. Maultsby, Jr.

Derrick acknowledges that union actors in particular have the advantage of professional lawyers bargaining on their behalf against powerful studios, a luxury that many creatives of other professions don’t have at their disposal. Yet, Derrick says he sees signs that non-union creatives are taking a page from the actors and standing up in their own ways. He cites a lawsuit against Netflix brought by participants on the reality show Love is Blind for poor working conditions. And laws may be catching up too, Illinois recently passed a law mandating that child influencers and children of family vloggers share in viewership profits depending on how much they appear in content. 

No Complacency for Creatives

In the uncertain and rapidly changing landscape of artificial intelligence’s effects on privacy and intellectual property law, Derrick says that creatives need to be more diligent than ever. Despite power imbalances and unequal access to legal representation, Derrick encourages creatives to advocate for their ability to thrive. 

It’s okay to review these contracts and ask for revisions to the license that you’re providing to your image. The worst they can say is no, but it’s important to go into things with your eyes wide open.”

Derrick L. Maultsby, Jr.

The silver lining of A.I. is that everybody, not just corporations, can utilize it to learn, empower themselves, and grow. There are also tools available for creatives to help protect themselves from being taken advantage of by artificial intelligence. And if you’re looking for a lawyer to help navigate this tricky terrain, Derrick says he’s a resource for the community to provide representation or just answer questions. 

Tips Derrick Shared

Here’s a summary of the tips that Derrick shared in Episode 20:

  • Do not put confidential information into LLM chatbots
  • Be proactive and create an A.I. policy for your company
  • Read and understand the terms of service of the A.I. tools you’re using
  • Don’t use A.I. solutions in final commercialization products to avoid infringing on third parties and to avoid hallucinations (exceptions are Adobe Firefly and Shutterstock which have licensing and compensation for the artists who help train their generative A.I. tools) 
  • Stay ahead of the law by embracing an ethical approach to A.I. 
  • Read contracts before signing and if possible, work with an attorney. Understand the risks and ask for edits for you maintain control of your likeness
  • Negotiate your contracts and waivers if you’re not comfortable signing

Links Mentioned in this Podcast

Continue the Conversation

Thank you, Derrick, for being our guest on Creativity Squared. 

This show is produced and made possible by the team at PLAY Audio Agency: https://playaudioagency.com.  

Creativity Squared is brought to you by Sociality Squared, a social media agency who understands the magic of bringing people together around what they value and love: http://socialitysquared.com.

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