The Volokh Conspiracy

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Free Speech

Defamation and Copyright


Several commenters asked: If AI companies don't have a copyright in works created by their programs, how can they be held liable under defamation law?

Defamation law and copyright law are two different bodies of law, aimed at serving different interests, and with different definitions. That's why people can routinely be sued for defamation even when their works aren't copyright protected. For instance,

[1.] The phrase "John Smith is a convicted child molester" is a short and simple phrase that's uncopyrightable. (Even if some highly creative short phrases might be copyrightable, the combination of a preexisting name and the preexisting "is a convicted child molester" phrase certainly isn't copyrightable.) Yet it could indeed be defamatory.

[2.] If Alan Author writes a libel of Paula Plaintiff (pro tip: never libel people whose names start with P), and Donna Defendant copies Alan's libel, that could indeed be defamatory, if Donna has the requisite mental state—even though the copyright is owned by Alan, not by Donna. (That's true regardless of whether Donna copied Alan's work with his permission, engaged in fair use, or infringed Alan's work.) This actually often happens, when Donna is a newspaper publisher who publishes Alan's op-ed. (Newspapers often publish op-eds by people who aren't their employees, without getting an assignment of copyright, but only a nonexclusive license to publish; in that situation, the copyright remains owned by the author, but the newspaper may be independently liable for defamation.)

[3.] If I spontaneously say "John Smith is a convicted child molester," and follow it up with five sentences of explanation, that oral statement not protected by copyright because it's not fixed in a tangible medium of expression. But it could be defamatory, assuming the elements of slander are satisfied.

In all these examples, the defendants are potentially liable, because defamation law cares about what the defendants communicated, and about whether it's false, reputation-damaging, said with the requisite mental state, and unprivileged. But the defendants aren't copyright owners, because copyright law is concerned with a very different thing (providing the incentive for creative expression fixed in a tangible medium). This doesn't itself tell us that AI companies are liable for their programs' uncopyrighted work, of course; I discuss that in much more detail here. But it does explain, I think, why copyright law has nothing to do with the question.