Real estate professionals experimenting with content creation through artificial intelligence should keep the Code in mind as case law evolves.

Although copyright law is rooted in human authorship going back to a Supreme Court decision from the 1880s, various cases involving fast-moving artificial intelligence technology are challenging that rule of law today, Chloe Hecht, senior counsel at the National Association of REALTORS®, said at the Risk Management Issues Committee meeting during the REALTORS® Legislative Meetings in Washington, D.C.

Hecht shared a few cases that illustrate the murky legal issues involving AI-generated works.

Plaintiff Stephen Thaler, for example, is suing the U.S. Copyright Office (in Thaler v. Perlmutter) because it denied him copyright for an image produced by his AI system, the Creativity Machine. He claims it was a work made for hire between himself and the AI generator. Despite various denials by the Copyright Office, “Thaler argues that human authorship isn’t required and, therefore, his work should be entitled to protection,” Hecht said.

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Thaler has indicated he will appeal his case to the Supreme Court if necessary, she added. 

In another case, an artist and author wrote text for a graphic novel and created images using AI. The Copyright Office granted her protection initially but limited the registration to the text and arrangement of the images when it learned they were AI-generated. “But the author maintains she didn’t just input a prompt,” Hecht elaborated. “She took the image and asked AI to change and tweak it until it reflected what she wanted.”

Finally, Hecht described a case involving stock image giant Getty Images, which this year sued an AI company, Stability AI Inc., for using 12 million Getty images and their accompanying metadata to “train” its system. “That’s a sticking point for creators,” Hecht said of the technology. Someone developing AI uses others’ work to train their system, which lets AI generate new work based on those originals.

The cases leave a lot of unanswered questions for real estate practitioners and others seeking to use this evolving technology. Nonetheless, the Code of Ethics offers guidance, Hecht said, citing Articles 2 and 12.

Article 2 holds that “REALTORS® shall avoid exaggeration, misrepresentation or concealment of pertinent facts relating to the property or the transaction.” Article 12 says, “REALTORS® shall be honest and truthful in their real estate communications and shall present a true picture in their advertising, marketing and other representations.”

As an example, Hecht noted, “using AI to remove a structural crack from a wall violates those two Articles, but removing a hose and bucket accidentally caught in a picture is different.”

In addition, she offered three takeaways for using AI as safely as possible:

  1. Always review AI-generated content for accuracy.
  2. Don’t use AI to create a work you want to be able to protect.
  3. Don’t assume any third-party content was created by AI and, therefore, available for your use. Always get permission in writing for the way you want to use the work, and save that documentation.

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