Generative artificial intelligence is fundamentally challenging copyright law and traditional publishing models. As AI systems create vast amounts of content without human authorship, author and publishers face unprecedented questions about creativity, originality, and intellectual property protection in the digital age.
To understand this disruption, you must first understand the policy behind copyright law. The premise is that without copyright protection, authors would have no incentive to create new works. However, algorithms and artificial intelligence don't require incentives in the same way humans do. This creates a fundamental tension that threatens the traditional copyright framework.
Why Author and Publisher Brands Matter More Than Ever
As publisher Alfred A. Knopf recognized in 1957, "a publisher's imprint means something and that if readers paid more attention to the publisher of the books they buy, their chances of being disappointed would be infinitely less." This insight, which appears in Knopf's The Borzoi Credo, a publishing manifesto first published in The Atlantic Monthly, becomes even more critical in the AI era, where content provenance and brand authenticity serve as essential quality filters for consumers navigating an ocean of machine-generated content.
Unlike book publishers, who generate royalties for human authors, internet platforms prioritize data-driven and machine-learning engagement for advertising revenue. They harness user interactions and behavior to sustain their financial models. As a result, these AI systems can generate vast amounts of content, from good enough to outright toxic, blending fact and fiction without any regard for copyright protections or permissions. For the time being, this glut of AI-generated media poses complex questions about information quality and attribution as well as the boundaries of creativity and originality.
As the volume of AI-generated media increases, the provenance of information will become more important, creating market incentives and consumer demand for publishers and creators who can demonstrate authenticity and high quality.
The Publisher Advantage in an AI World
While addressing the complexities of regulating AI-generated content remains an open question, the established community of publishers has an important advantage in addressing consumer comfort levels as provenance plays a central role in fostering trust and reliability in information. Publishers (with a capital "P"), through selectivity in what they acquire, careful editing, collaboration amongst sales and marketing, publicity, and the payment of royalties, offer a baseline of trust in the data they publish.
Amidst growing uncertainty in consumer trust towards AI, the presence of author brands, publisher imprints, and robust metadata becomes pivotal. These elements act as guiding beacons for consumers, helping them navigate the overwhelming volume of data and identify high-quality works amidst the vast sea of information.
Without trademarks, John Oathout, author of Trademarks, wrote, "consumers would have no basis for selection or rejection, or any assurance that a particular product is the product they are seeking."
Trademark Protection as a Strategic Response
Unlike copyright law, trademark law can be used to stop the unauthorized use of a bestselling author's name, a series title, symbols, and markings that the public associates with a particular publisher or other source. In this respect, trademark law is an effective cudgel against those who pass off their wares as endorsed by or coming from an established creator, publisher, or producer.
Trademark registration of an author's name, a series title, or a publisher's imprint also opens doors to Amazon's Brand Registry, empowering authors and publishers with takedown tools. The Brand Registry is a quick and cost-effective alternative to litigating unfair competition and right of publicity claims. The hitch is that the name or mark must be registered, which requires showing consumers perceive the name to be a badge for literary services.
The Future of Publishing in the AI Era
While the publishing industry understandably has antagonism towards large language models, the industry will no doubt take an active part in shaping the future of AI, whether through legislation, licensing their books to train AI, creating bespoke AI models with their own curated datasets, and trumpeting the Good Housekeeping Seal of Approval value of their author and publisher brands.
As Norbert Wiener warned in The Human Use of Human Beings (1950), technology left unchecked can reduce people to little more than cogs in a machine. Today, generative AI is undermining the incentives given to authors by copyright law while simultaneously fulfilling copyright's constitutional purpose of promoting "the Progress of Science and useful Arts." This tension will work itself out over time, but we need human editors and publishers for transparency, accountability, and quality control purposes. In an age of generative AI that can masterfully simulate the verisimilitude of human authorship, authentic human curation and editorial judgment become more valuable, not less—making publisher brands and trademark protection essential competitive advantages.
About the Author
Lloyd J. Jassin is a New York publishing and entertainment attorney with 30+ years of experience representing bestselling and first-time authors, literary agencies, and publishers. He specializes in book contract review and negotiation, manuscript clearance for libel and privacy law compliance, book-to-film/TV deals, brand protection, and complex rights reversions for authors, composers, and literary estates. He co-authored The Copyright Permission and Libel Handbook (John Wiley & Sons) and has been quoted in The New York Times, Wall Street Journal, Forbes, and Time Magazine.
Licensed to practice in New York and New Jersey, Mr. Jassin counsels clients on all aspects of content creation, copyright, trademark, and privacy law in the evolving entertainment landscape.
Contact: Jassin@copylaw.com | (212) 354-4442 | 104 West 40th Street, New York, NY 10018. With offices in Morristown, NJ.
