Copyright issues raised by generative-AI (artificial intelligence) have been receiving extensive coverage and discussion lately. Generative-AI has given rise to another kind of problem, too, though. People are generating books “in the style of” books by well-known authors and marketing them to the public as if they were written by those authors when in fact they were not.
Jane Friedman was one of the first to report the problem of AI-generated fake books.
The way it works is this: A person asks a generative-AI tool to write a book in the style of a particular named author. Usually it is a well-known author and/or one whose books sell well. The person then creates a listing on Amazon or another online marketplace for the book, misrepresenting it to be the work of the named author rather than AI-generated. Proceeds from sales of these unauthorized knock-offs are then shared between the marketplace provider (Amazon, eBay, etc.) and the fraudster.
It can be difficult for an author to get these knock-offs removed. Of course, if you are able to prove that one of these sham books infringes the copyright in one of your works, that should provide a basis for removal. In many cases, however, it can be difficult to prove that an AI-generated book actually copied from any particular book. A book “in the style of” so-and-so might have a completely different setting, plot, characters and so on. Generative-AI tools can generate a book on a theme that a named author commonly writes about, but copyright cannot be claimed in themes.
Trademark law is not necessarily of much help, either. Publishing under a name under which someone else is already publishing is not illegal. In fact, it is quite common. For example, five different people named Scott Adams publish under that name.
The sham books not being pirated or counterfeit copies of any existing work, and an author not having secured a trademark registration in his or her name (not always possible), can be obstacles to getting a title removed on the basis of copyright or trademark infringement.
The Lanham Act
The Lanham Act, sometimes called the Trademark Act, is a federal law that prohibits a wider range of activity than merely trademark infringement. It prohibits false and misleading designations of origin (false advertising), as well, including attempts to pass off a product as somebody else’s. No trademark registration is necessary for these kinds of Lanham Act claims.
These provisions offer a small glimmer of hope. Unfortunately, these kinds of claims are not as easy for marketplace providers like Amazon to sort out, as compared with a claim that someone is using a trademark that is confusingly similar to one that has been registered.
Other legal remedies
The Copyright Act and Lanham Act are not the only possible sources of legal recourse. Book authorship fraud is likely unlawful under state unfair competition and deceptive trade practices laws. In many jurisdictions, a claim for damages for misappropriation of name or likeness, or of exclusive publicity rights, may be viable.
As a practical matter, though, these rights may be difficult to enforce. Marketplace providers are equipped to handle claims where someone is able to produce a trademark or copyright registration certificate to support their claims, but they are not courts. They are not equipped to decide the kinds of fact issues that typically need to be decided in order to resolve competing claims to rights in a work, or likelihood of confusion and so on.
This seems to me to be yet another aspect of generative-AI that is ripe for legislation.
Photograph by Martin Vorel, https://creativecommons.org/licenses/by-sa/4.0, via Wikimedia Commons. The image has not been modified. No suggestion is made that the licensor endorses this author or this use.