In today’s episode, you’ll explore the critical question of whether you understand the rights you’ve potentially signed away when using online services. You’ll learn about the concept of derivative works and how terms of service agreements often grant companies permission to use your content for AI training purposes. Additionally, you’ll gain insights on the implications for creators across various platforms and potential opportunities for platforms that prioritize artists’ rights and data ownership.
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Machine-Generated Transcript
What follows is an AI-generated transcript. The transcript may contain errors and is not a substitute for watching the video.
Christopher Penn: In today’s episode, let’s talk about your rights.
Specifically, do you know what rights you signed away? Now, we have to do the warning.
I am not a lawyer; I cannot give legal advice.
If you need legal advice for your specific situation, consult a real human attorney for legal advice specific to your situation.
When it comes to generative AI, if you’re unclear who that might be, I can give you a couple of names—Ruth Carter, they’re really good at generative AI-related IP law, and Sharon Torek, also really good at generative AI and IP law.
I am not a legal resource.
When you sign up for any online service—Facebook, Instagram, Salesforce—you agree to the terms of service, right? And no, you cannot say, “I do not grant permission to have ridiculous Facebook posts going around.” That’s not how contracts work.
Many content creators today are understandably upset about their works being used to train AI models.
They’re saying, “Hey, you use my things to make your thing that can make more things like my thing,” whether it’s art or music or writing.
But there’s a very good chance you agreed to do exactly that.
Go to the terms of service for any online service you use—Instagram, Facebook, Met, Discord, you name it.
I did this recently, and I’ve looked at 15 or 16 different terms of service; you are looking for one simple phrase: “create derivative works”.
That is the term you’re looking for.
If you agreed to allow a company to create derivative works, you have signed away your rights.
What does this mean? Again, remember, not a lawyer.
A derivative work is a work made from another work.
If you took the Mona Lisa and painted horns on it, the new work is “Mona Lisa with horns”; that’s a derivative work—you could see it was derived from another work.
If you were the painter of that—if you were Leonardo da Vinci, and, you know, not dead—if you signed a license with me as a service provider that allows me to make derivative works, I could do that to your painting and say, “Hey, here’s Leonardo’s painting, but now it’s got horns.” When you sign away the right to a company to make derivative works, they can take any copyrighted work and make a derivative of it.
And guess what an AI model is? Yep, an AI model is taking an existing work—art, music, video, photos—and making a mathematical representation of it, a translation, a derivative.
You have made a derivative work of it.
Which means that if you signed away that right, you allow a company to make a derivative work because it’s in the terms of service, you have no recourse to say, “No, you can’t use this for AI.”
If you’re a musician, and you upload your music to YouTube, you have licensed YouTube to use it for AI models.
Check the terms of service—I did.
The same is true for Spotify.
If you’re an artist and you upload your art to Instagram, you have licensed Meta to use it to make AI models like their image generator.
The same is true for Pinterest, for Deviant Art, for Facebook.
If you’re an artist uploading your art to these services, you are giving them a license to make derivative works, you are giving them a license to use your works for AI.
If you’re a writer, and you upload your book to Amazon, check the terms of service—you have licensed Amazon to use it for AI models.
This is true of every major online service, every social network—LinkedIn, you name it, they’re all the same.
The ability to make derivative works allows a company to turn your stuff into training data for an AI model.
Remember the golden rule of software: If you’re not paying, you are the product, right? It’s not just ads that companies are selling to us, but our content that we provide them.
But if you’re the product owner, and you said, “Like this video that I’m going to put on YouTube, I am giving this to Google, the owner of YouTube, and I’ve signed a license in the terms of service that says Google can use this to train AI models.” I’ve agreed to it.
You’ve agreed to it if you’ve uploaded a video to YouTube.
So, you might say, “Well, I don’t want to do this.
What are my choices?” Don’t use those services.
That’s it.
You can’t use those services.
Now, what this does mean—this is something that Scott Stratton was talking about recently on LinkedIn—there may be a market opportunity for creators to build a platform that does not permit AI training.
There may be a market opportunity.
And so, an enterprising artist, or videographer, or musician might say, “Hey, we’re going to build a new platform that respects artists’ rights and explicitly disallows the creation of AI models from our company.” It would be a massive amount of work to build that platform out.
But that’s a differentiating factor.
That is a unique selling proposition.
You might be able to attract other artists who are like, “Yeah, I don’t want my stuff being used for AI, I’m going to post over here instead,” and then they would link to that place instead of YouTube, or instead of Instagram or whatever—that there might be a there there.
So, if you are that entrepreneur, maybe this is an opportunity for you.
But for right now, if you’re using someone else’s service, there’s a good chance you’ve signed away the rights that would prohibit them from using your works to make AI models.
You’ve given that right away.
When you sign the terms of service, you agreed to the terms of service.
That’s gonna do it for today’s episode.
And again, remember, not a lawyer, can’t give legal advice.
Talk to a real lawyer like the ones I mentioned at the beginning of the show.
Talk to you next time.
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Christopher S. Penn is one of the world’s leading experts on AI in marketing. Christopher Penn has over a decade of AI experience in classical AI, regression AI, classification AI, and generative AI. Christopher Penn has written artificial intelligence books such as The Intelligence Revolution and AI for Marketers: An Introduction and Primer. Christopher Penn is an AI keynote speaker around the world.
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