The evolution of artificial intelligence is moving so quickly, even OpenAI‘s policies are already out of date.
Last week, along with the launch of OpenAI’s latest hyper-realistic AI video model, Sora 2, the Wall Street Journal reported that the tech company intended to require copyright holders to opt-out if they don’t want their creations to appear in the Sora app. The lawyers we spoke to compared it to a burglar saying he had the right to steal everything in your house because you haven’t explicitly told him to stop.
We’ve long suspected that AI companies were training their models on copyrighted material, with some cut and dry lawsuits that Hollywood studios are battling aggressively, and it suddenly felt like OpenAI was now just daring everyone to get them to stop.
“They’ve essentially admitted that there’s at least a live issue here as to whether creators or owners of copyrights will be able to enforce their rights,” Ray Seilie, an attorney with KHIKS told IndieWire. “They’re saying if you own a copyright and you don’t want that copyright to be used in our training data, you have to tell us. And by implication, you’re saying they have some rights here. We need some level of permission. But then they don’t go all the way and ask for a license. You tell us if you’re going to go after us. And that’s just not the way that any kind of right works.”
“It’s the equivalent of a begging for forgiveness type of thing. Because I think we all know it has been happening,” added Simon Pulman, an attorney with Pryor Cashman. “What they are effectively saying is as a position, ‘The second you create it, we have the right to use it, unless you affirmatively opt out.’”
That begging for forgiveness came quick on Saturday when, after the Internet was flooded with people using Sora 2 to create custom “South Park” episodes, Pikachu in “Saving Private Ryan,” or police dashcam footage of “Mario Kart,” OpenAI CEO Sam Altman said it was changing its tune.
“We are hearing from a lot of rights holders who are very excited for this new kind of ‘interactive fan fiction’ and think this new kind of engagement will accrue a lot of value to them, but want the ability to specify how their characters can be used (including not at all),” Altman wrote in a blog. “We assume different people will try very different approaches and will figure out what works for them. But we want to apply the same standard towards everyone, and let rights holders decide how to proceed.”
Altman explained that, rather than an opt-out, the generation of existing characters would instead have rights holders opt-in. It’s the same way OpenAI intends to police “likeness,” which the company is treating separately from “copyright.” One of Sora 2’s gobsmacking new features is letting people “Cameo” in your AI-generated videos. If you so choose, you can put yourself into an AI video with Sora 2, and your friends can do the same, but you can revoke someone else’s privileges to your likeness or to a specific video they’re making at any time.
We read that as, if Nintendo is cool with people using AI to see Mario speeding away from cops like he’s OJ Simpson, then more power to them. We just don’t envy the person at Nintendo who has to comb through every video created and determine which ones Nintendo is cool with and which ones it’s not.
The trouble with this: OpenAI hasn’t brokered a deal with a studio to grant them full permission to do whatever they want, like in the way Runway did with Lionsgate to generate AI models based on their films. When that news broke, we wrote that there’s a distant future where Lionsgate and Runway charge people if they want to use AI to put themselves into “John Wick 5” or create their own fan-fic endings. OpenAI has just gone and done it, and your guess as to how any of this will be monetized is as good as ours.
“That’s how you would have companies typically act in situations where you need to get permission from a copyright holder,” Seilie said. “This is a strange middle ground where [OpenAI] is saying, well, we acknowledge that you have some rights here, because why else are we asking for your opt-out? But we also don’t think we really have to respect your rights unless you opt out.”
Pulman said it’s the latest example of a tech company working to get ahead of the law by first trying to normalize and make ubiquitous the thing it’s doing. He explains that, if OpenAI can muddy the waters with an enormous amount of people using the Sora app, flood social media with AI slop, and make the process of combatting it so complex and difficult to navigate, the court of public opinion will eventually work out in its favor.
After OpenAI along with Google recently lobbied the Trump administration to consider all AI training data “fair use,” it’s betting this administration has sympathetic ears to help on legal grounds as well.
But an important distinction that also remains murky is input versus output. Copyright holders may now say they don’t want their characters appearing in the Sora 2 app, but it’s not clear whether that also precludes that material from being ingested in training data for the Sora model. Sora may bar users from generating Darth Vader, but it doesn’t necessarily mean it didn’t learn from Darth Vader to create everything else. That means that even if one were to successfully opt out, it could be near impossible to verify whether OpenAI has actually complied.
“You don’t, it’s a ruse,” said Bryn Mooser, CEO of the AI film studio Asteria. Studios, he believes, shouldn’t be asking OpenAI whether Sora 2 can generate their copyright but should ask, was it trained on it? “Just because you can filter it does not mean that it’s not in that data set,” he said.
Mooser said it’s not hard to imagine a near future where AI-generated likenesses of actors are used to sell junk, and that the 10-second clips that can put your friends’ faces into the videos are all about creating content for social media.
This is not the utopian vision of creating an AI model that can cure cancer or democratizing the filmmaking process so that anyone can make their own “Avatar.” And after playing around with everything Sora 2 can do, he said what it can create is “pretty shocking to see how brazen” it is with copyright.
“The release of it is an admission that OpenAI is not interested in Hollywood,” Mooser said. “It’s not going to be all the breathless articles that were written about when Sora 1 came out: Hollywood is over. Hollywood’s cooked. When Sora 2 comes out it’s, ‘We don’t care about Hollywood. We don’t care about copyright or about artists concerns about being replaced by making viral slop. And we don’t care about the needs of Hollywood when it comes to having AI tools that are actually powerful enough to be used for making film and television.’ It’s a real sign that’s not where their interest is, despite probably having a bunch of meetings a year ago to the contrary.”
Asteria, which is the AI company co-founded by Natasha Lyonne and the home of her directorial debut that aims to incorporate AI into the filmmaking process, has designed its AI model such that everything it’s trained on is designed by the filmmakers and artists working on the project or licensed directly from other creators. And while using AI in any capacity is already toxic enough in Hollywood without OpenAI’s help, Mooser feels making generative AI videos synonymous with viral memes is going to make things even harder for the indie filmmakers who dream of using AI ethically.
“Is the industry going to stand in this moment and try to figure out how to build this thing in the right way? Or does the pressure of the new technology just wash over and everybody gives up the fight,” Mooser asked. “We’ve all been at these points before where technology is going to disrupt how we make things, and I think that the industry has done a good job up until now of ‘we set our standards with the guilds or with our norms.’ We don’t wait for court cases in Washington D.C. to decide this stuff. But I do think that we’re at that crossroads … the rights holders and guilds need to be paying attention, because you can lose that fight if you’re not paying attention.”