Issue link: https://digital.copcomm.com/i/1546054
• prompting a film or video into existence and profiting from it • the killing of creative departments and using prompt- driven outputs to replace their artistry • unidentifiable deepfakes I would hope that the last point would be of keen interest to political actors across the spectrum. This does not mean people cannot use prompt-driven Generative AI models. This does not mean companies cannot create prompt-driven Generative AI models. This action would prevent those outputs and assets from being copyrighted, thus disincentivizing individuals and companies alike from pursuing implementation of human creativity- killing prompt-driven Generative AI. The language must also prevent corporations from hiding any prompt-driven Generative AI usage under Trade Secret Law. S federal law defines a copyrightable work as "an original work of authorship that is fixed in a tangible medium of expression." Works are considered original when they are independently created by a human author and have a minimal degree of creativity; a "spark" and "modicum" of creativity per the Supreme Court in Feist Publications, Inc. v. Rural Telephone Service Co. (https://www. copyright.gov/what-is-copyright/) Generative AI models are inherently derivative. Large Language Models (LLMs) are massive datasets that can be accessed and amalgamated by computer technology faster than at any time in human history. This makes these machines true marvels of innovation, not artists or creatives. Ultimately, prompt-driven Generative AI outputs and assets are the highest level of statistical calculation and speed, algorithmically predicting the most likely next step in a mind-boggling series of seemingly infinite steps to produce an asset. These assets are the logical end of those statistical calculations. At the end of the day, they are math. There is no "spark" or "modicum" of creativity as a result of a prompt. "But why do I get different outputs after making the same request or asking the same question of an LLM? Isn't that an indication of some creativity in the generative process?" No. In those situations, statistical variations occur in the LLM's next-step calculations as confidence levels decrease. It is still a calculation, a random deviation in the process when confidence in the next statistical outcome, or token, is reduced. There is no a "spark" of creativity. "But the Copyright Office already says that Generative AI outputs are not eligible for copyright protection. Wouldn't these measures be redundant?" Not exactly. There are exceptions to this rule, such as "significant human editing" and "creative selection and arrangement" that open the door for prompt-driven Generative AI outputs to be eligible for copyright. That loophole is like a small, frayed thread on your jeans. It will get picked at and picked at until a hole opens that is too big for any patch. If there's one thing we should have learned over the past decade or so, it is that loopholes beg to be exploited, and once that happens, the exploitation becomes the norm; so much so that we can't remember what the original norm was. One such case has already chipped away at this subjective criterion. The U.S. Copyright Office granted a copyright, upon appeal, for the work "A Single Piece of American Cheese" by Kent Keirsey, the CEO of Invoke AI. This work and its appeal followed copyright law, exploiting the ambiguous exception of what constitutes "significant human editing" to a work whose original source is a prompt. It should be noted that Invoke AI's self-described purpose, "wasn't to create a masterpiece (obviously). We wanted to see where the "floor" was for the U.S. Copyright Office to grant copyright protection to an AI-assisted work." This was a company-driven probe into the limits of copyright law. After the ruling, Invoke AI states, referring to artists, "We hope that those people can now feel confident that their work can be protected, at least in the United States." (https://44037860.fs1.hubspotusercontent-na1. net/ hubfs/44037860/Invoke-First-Copyright-Image-AI- Generated-Material Report.pdf) This floor was found only because more stringent laws like the one(s) proposed above were not in place. Existing copyright law left the side door cracked and Invoke AI found their way in. They were the first to pick at the frayed thread in the jeans, and they certainly won't be the last. Legislation is the only way to close these loopholes. Tens of thousands of AI-generated pieces of "music" are uploaded to Spotify every day, many of them topping charts and reaping profits. Artists on Spotify get paid from a pool of subscription and ad revenue. The dollar amount paid is dependent on an artist's total number of streams past a minimum threshold. It follows that any prompt-driven Generative AI "song" is taking money out of the pockets of U M OT I O N P I CTU R E S O U N D E D I TO R S 25