AI and Copyright: What Every Author Needs to Know Before Publishing - BM529

Could using AI in your book create a legal problem you never saw coming?

What if parts of your manuscript are not actually protected by copyright? And what should authors know before using AI for research, outlines, editing, or content creation?

In this eye-opening conversation, legal expert Elissa Hecker breaks down what nonfiction authors need to understand about AI, copyright, contracts, and protecting their intellectual property in a fast-changing publishing world.

This episode answers the questions many authors are afraid to ask.

Key Takeaways

Can You Copyright AI Content?
The surprising truth about what parts of AI-assisted work may not be legally protected.

Are You Using AI Safely?
Smart ways to use AI without risking ownership, credibility, or control of your content.

The Contract Clause Authors Cannot Ignore
Why publishers are paying attention to AI use and what disclosures may soon become standard.

Your Biggest Competitive Advantage in an AI World
Why your voice, experience, and originality matter more than ever and how to protect them.

One Copyright Mistake That Could Cost You
The difference between “having copyright” and protecting it when problems arise.

If AI feels exciting, confusing, or a little intimidating, this conversation will help you separate hype from reality and make smarter decisions about your book, your ideas, and your intellectual property.

Here's how to connect with Elissa:

Email Elissa for your complimentary 30-minute consultation

Website

Resources: 

US Copyright Office

Patent and Trademark Office

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Transcript

Susan Friedmann [00:00:00]:
Welcome to Book Marketing Mentors, the weekly podcast where you learn proven strategies, tools, ideas and tips from the masters. Every week I introduce you to a marketing master who will share their expertise to help you market and sell more books. What if legal wasn't something you avoided, but something that helped you grow your business? Today's special guest, Alyssa Hecker, believes exactly that. Working at the intersection of law, business and creativity, Alyssa serves as general counsel to entrepreneurs, solopreneurs and creatives across the U.S. she helps them approach legal decisions with clarity, strategy, and a focus on long term success. Her philosophy is simple. Legal should help you make money and and build better relationships. Alyssa, it's an absolute pleasure to welcome you to the show and thank you for being this week's guest, expert and mentor.

Elissa Hecker [00:01:02]:
I'm so happy to be here. Thank you. That was a lovely introduction. And yes, everybody should have a lawyer who's a friend.

Susan Friedmann [00:01:10]:
I think when they think of lawyers,

Elissa Hecker [00:01:11]:
it's like, ah, yes, you never want to be on the defensive. You always want to plan ahead. Like a good marketing strategy. You want to have your legal strategy.

Susan Friedmann [00:01:21]:
I love it. And I know that you work a lot with authors, especially nonfiction authors. So you're a perfect guest and especially a subject that I really want us to dig deep into. And that is the whole idea of AI and publishing. Because as we know, AI is showing up everywhere in publishing. And from your perspective, what are authors getting wrong when it comes to the legal side of using AI?

Elissa Hecker [00:01:51]:
That is a phenomenal question, and I'd like to say answer like a lawyer. It depends. The biggest one is if an author uses like a genre of AI to help actually write anything created through AI currently in the United States. According to the Copyright Office, which has studied this, anything generated by prompts in the United States is not protectable by copyright. So if you write something by prompting, no matter how in depth the prompts become, you're really not doing the writing. You can't protect that and you can't register it with the copyright office. With that being said, especially for nonfiction, AI is phenomenal. Again, I'll use that word.

Elissa Hecker [00:02:36]:
It's incredible. As an organizer, as virtual assistant in a lot of ways, as a way to help you with your outline, as a way to help you streamline the process operationally, as long as it's not doing the actual writing. And there are also a lot of things I know you and I were discussing a little bit earlier, generative AI, which are the large language learning models. Everything that you put in as input can become someone else's output. That's why we're advising people not to put in your tax returns, your medical records, your credit card information or what you're writing. Because these models are taking and scraping from everything that's put in. And your particular writing style can come out of someone else's. You want to think about that kind of thing.

Susan Friedmann [00:03:27]:
That's scary. Whatever you put in, as you say, it's open to the world.

Elissa Hecker [00:03:33]:
Yes.

Susan Friedmann [00:03:34]:
If an author decides to use AI, let's say, to help, to write, to edit, as you mentioned before, who actually owns the content?

Elissa Hecker [00:03:43]:
It depends. Spellcheck is an AI program. Grammarly, these are AI programs and that is absolutely fine to use when you're talking about editing the basic things like that. What I'm saying is you put in prompts, I have two star crossed lovers and their families don't want them to be together. Write a scene, you know, or getting further, further in. As long as you're doing your own writing, you know, AI can help you with idea generation because ideas are also not protectable by copyright. It's the expression of the ideas that is, you can help get ideas generated from AI, which is fine, but again, it's taking from all of the ideas that it has already scraped. So it's probably not going to be a very original one if you really want to come out with something that's original.

Elissa Hecker [00:04:30]:
Again with nonfiction, that's a little bit different than fiction. Because usually in nonfiction you have an idea of a subject, whether it's history, whether it's crime, whether it's a biography, whether it's an autobiography. So you already have a lot of the materials and ideas in front of you. You can use AI to help you organize that.

Susan Friedmann [00:04:49]:
When it comes though to copyright, how do you even think about where is AI involved? Especially as you mentioned earlier, that it's been trained on other people's work. I mean, is anything that you write there copyright?

Elissa Hecker [00:05:06]:
Let's start at the very beginning of what is copyright protection in the United States you can get copyright over your work as long as it's an original work that's fixed in a tangible medium across the board. That's the basis for our copyright. So if you've written a manuscript, for example, but you haven't published it, it hasn't been sold to the world or anything, you can still get copyright registration, get a copyright registration for that. If you submit it to the copyright office as an unpublished work, you could still have protection over that. And then once it's published, you can also submit it as a published work. There's different coverage in terms of the term of copyright, depending on whether it's unpublished or published. But if you are writing things and you start putting them into these open large language models, it's not like a closed system that only you have on your computer and it's not accessible to the world. There is a chance that what you're putting in comes out as someone else's product.

Elissa Hecker [00:06:07]:
You can't really protect that because who do you go after? There are a lot of lawsuits right now going on in the entertainment and the book publishing industries with a lot of these models. Some are more successful than others. But there are also some licensing models that are turning up. I know the Authors Guild is working with one particular AI company that is working on a licensing deal and they're hoping that this is going to perhaps be. I mean, we'd love to have some legislation to help, but it's going to be a long time. So a lot of the industries are trying to figure out how to do it themselves.

Susan Friedmann [00:06:43]:
Well, that's dangerous, isn't it?

Elissa Hecker [00:06:46]:
Sometimes we need the industry push as well as the lawsuits to help a somewhat mostly inactive Congress to do its job. We're trying to get it from all angles.

Susan Friedmann [00:06:56]:
Yes. I mean, there are cases. They're going to be the first that have ever been tried with regard to AI because it is so new and it's the Wild West. I mean, people are using it, it doesn't matter. But then.

Elissa Hecker [00:07:13]:
And also, by the way, just to say in India, there was recently a decision by the country of India, the Indian Copyright Board, that you can register an AI created artwork that the United States Copyright office would not register. So I'm talking really just the United States laws at this point in terms of copyright. There are other countries around the world that are recognizing it slightly differently.

Susan Friedmann [00:07:37]:
Maybe we should go to India or one of the other countries to have our stuff copyright.

Elissa Hecker [00:07:41]:
Well, you can absolutely register. And the United States is part of a convention of countries all over the world that if it's protected in one, it can be protected in another. With that being said, it can still be registered in India, but will not be recognized as protectable here. So if you try to enforce it here, you will be unsuccessful because of our laws.

Susan Friedmann [00:08:02]:
Let's talk more and go into more depth with this whole idea of copyright. Can you actually copyright a whole piece of work or is it just the title or a method that you use or within the book? Talk to us more about what you can and what you can't do well.

Elissa Hecker [00:08:23]:
I'm glad you said that. So copyright does not extend to ideas, procedures, processes, systems, methods of operation, concepts and principles, and also discoveries like these are not covered by copyright. One of the examples that's going to date me. But you can't copyright a phone book because it's just a list of names. Like there's no originality, there's no creativity kind of thing. But you can, as I was saying earlier, like you have an idea of Star Crossed Lovers, you can't protect that idea, but you can protect an original, tangible expression of that idea. Whatever you create in terms of writing a book, as long as it's original, you have in some tangible form of expression, which would be your computer, print it out, whatever it is that can be protectable.

Susan Friedmann [00:09:13]:
Okay. In many times with a nonfiction book, people are using their own experience to method or just their experience overall that they want to share with the world. Especially obviously in a memoir. But are you saying that could or could not be copyright?

Elissa Hecker [00:09:33]:
That's a very good question. Because the way it's expressed in the book is protectable. If you just have a process that you use in the outside world, that's not necessarily protectable, but the expression of that process could be as part of the book.

Susan Friedmann [00:09:51]:
Now how does this intersect with, let's say, a trademark?

Elissa Hecker [00:09:56]:
Oh, very good question. So you have different bundles of rights in your intellectual property. The bones that are most prominent are copyright, trademark, patent, and often trade secrets are hanging on in there. Patent is a lot of discoveries, a lot of systems, a lot of things. Mechanical, chemical, which is what we're not going to cover here. Trademarks are your brand or your marks for your brand, it's the source identifier. So if I'm a consumer and I see like a Nike switch, for example, I know what's coming from that is going to be sportswear, athleisure, potentially branding with balls and sports equipment and other things like that. That's your source identifier that identifies your goods.

Elissa Hecker [00:10:41]:
You cannot incidentally get a trademark for the title of a book. You can, however, get a trademark for a book series, like the Harry Potter series. Once you have more than one book, if it's a series, you can actually get a trademark for it. A copyright, on the other hand, protects the works themselves. So what you're trying to brand with your trademark is really everything that you have written or the images or the content that you're putting out. You want to protect that with your brand. But the content itself can be protected by copyright. And very often, if you have a trademark that's a logo that can be protected both as a trademark and a copyright, because the logo is a visual art which is protectable by copyright as long as it's not created by AI.

Susan Friedmann [00:11:30]:
Oh, that's interesting.

Elissa Hecker [00:11:31]:
To go back to the other stuff. Trademark is less a problem with AI as copyright is. But a trademark logo that is created by AI has a lot less oomph behind it because it's hard to protect something if everybody else can use it anyway.

Susan Friedmann [00:11:49]:
Okay. Even though AI has generated something so called original, you can't copyright that or trademark that.

Elissa Hecker [00:11:57]:
You cannot copyright that. You can't potentially trademark that. It will not extend the protection as far as you would like it to be as if it was an original work.

Susan Friedmann [00:12:07]:
Okay, let's talk about the business side. Should authors be disclosing their use of AI in publishing agreements or in collaborations or client work? How does that come in? How does that play in?

Elissa Hecker [00:12:22]:
That's a great question as well. The Authors Guild, which I keep mentioning because it is the representative guild for authors in the United States, has really been doing a lot of work in this and has come out with some wonderful language that I'll send to you so you could put it in your resources to your listeners. Language that an author can have inserted into a publishing contract, self publishing, hybrid publishing, or traditional publishing, that says that the publisher will not use the manuscript or anything related to it for the large language learning models for AI to be trained on, and therefore the author's voice and words and originality will not become fodder for this churn that's going out there on the other side. I've been putting in my publishing company agreements and I've seen it in a lot of agreements in general in the entertainment industry, where a producer or a publisher will hire someone to write something or create something, and the language in there includes not only are you representing and warranting that what you're creating is new and original and doesn't violate any third party rights or copyrights, but that it's also not AI generated because the one who's commissioning the work needs to know that it can be protected and that it's not just coming off AI and therefore nothing's there.

Susan Friedmann [00:13:40]:
Is there a way to check whether it's come off of AI?

Elissa Hecker [00:13:44]:
Sometimes you can look at things now and see. I mean, I don't know if you're on any lists for consultants, for example, but every day my inbox is flooded with emails from consultants who are fabulous at what they do, but very often they use AI to do their generative email kind of sharing what I'm thinking about today. And, and they all have the same cadence. AI very often, I know ChatGPT often does things in threes. You can see often. I know a lot of professors and teachers have tools that can help them look if their students papers are done. I know there's technology out there that can help detect. I can't necessarily recommend one or the other.

Elissa Hecker [00:14:27]:
And I also know that as quickly as that's happening, AI is getting trained to be smarter, to figure out how to avoid that, that the next round has to come around. So very long answer to a short question. Yes, there are tools, but I'm not sure which ones are good and not.

Susan Friedmann [00:14:43]:
Yes, it's interesting to see the patterns. And as you said, there are patterns that ChatGPT comes out with all the time. The same, those threes. I mean, it drives me crazy when I see that every single time I'm like, no, no, don't write like that.

Elissa Hecker [00:15:01]:
Right. It's okay if you want to be like the consultant or the business person who wants to use AI to help. If you have to put out content every day and you don't care as much about protecting those individual things, but you have specific messages you want to get out, ChatGPT is fantastic for that because it can really help you organize your thoughts and write those things quickly. What you should do though, especially if you're an author, is make sure to look at those and put them in your voice. Really, anytime you use a generative AI, make sure you check it. Especially if you're a nonfiction author and you're using it for any particular person because there are hallucinations and you want to make sure that what is being kicked back is accurate and also to put it in your own voice. And again, I'm not suggesting you use this to write your manuscript, but if you do happen to have a manuscript and you're also speaking and you're on the circuit and you want to send out emails, you can use it for your emails, you can use it for your mailchimp stuff, however else you get at your message for your Instagram, but just know that it's not predictable, but it's okay to use for business. I mean, that stuff is really helpful.

Susan Friedmann [00:16:09]:
What about an author's credibility or even their brand? If they rely too heavily on AI with, let's say, not thinking it through sufficiently, like you mentioned, it depends on

Elissa Hecker [00:16:22]:
how much the author relies on their credibility. And I've seen this with music, and I've seen this with writing. If it's an author who just wants to get out there and make as many generic sales or have certain kind of numbers, some people are just about the number generation, then they don't care. If you're an author who really cares about your reputation and your craft, write, don't use AI to write for you. It is your reputation. And a lot of these authors are actually. Some are more successful than others, but a lot of them are plaintiffs in some of these big lawsuits. And they're able to show all the years of writing that they've done, how distinctive is their style and how they do things.

Elissa Hecker [00:17:03]:
And it may be that that's what makes a difference, because the generative AI machines are creating other ways of writing in those styles for other authors. And is that copying? Is it not? But I think if I was going to advise an author who cares about a reputation to stick with what you do best. And that's right. And don't rely on this machine to write for you. And also just to say. And a lot of people are worried that AI is going to take over all of these jobs. AI is definitely helping to eliminate a lot of creative jobs. But if all of the creative jobs are gone, AI only has itself to recirculate all that.

Elissa Hecker [00:17:43]:
So no new ideas will be coming back. No new books are going to be written. It's all going to be a recirculation of what's there. So there'll be no new creativity. What I feel is that that's not going to happen because you can only have so much of the same and people are just going to get sick of that.

Susan Friedmann [00:17:59]:
I love that approach. Yes, you're right.

Elissa Hecker [00:18:02]:
Plus, it also eats up, you know, it's got crazy environmental side effects, which is not a good thing for our world.

Susan Friedmann [00:18:09]:
No, definitely not. Let's bring it back to something actionable. So if you could give authors a simple guideline when it comes to using AI in their writing or publishing process, what would that be?

Elissa Hecker [00:18:22]:
I would say use AI as an office assistant. Use AI to help organize your thoughts. Use AI to help figure out. Yeah, really organizing operationally because your book is also your business. So I would say AI is great with business tasks. Never put anything into an open shared model that is proprietary to you that you don't want to have shared with the rest of the world. We used to say, don't do anything you don't want to see in the COVID of the Washington Post. And I would say do your own writing and revising and everything.

Elissa Hecker [00:18:57]:
You can use AI also for research. AI is great for research, but check everything. I think a recent report came out that when you Google anything and now the AI prompt comes up immediately. Don't quote me on this, but I think it was 23% of what comes up is actually just wrong. If you're writing nonfiction, if you're writing a memoir, if you're right again, any kinds of things like that, make sure you have everything correctly sourced and don't just rely on AI. And AI can make you lazy. So I would say keep your craft sharp and do not rely too much on AI in terms of the creativity of what you do.

Susan Friedmann [00:19:39]:
You're so right with that. I mean, it does. There's a tendency to rely on AI to help you with this. I love using it for looking at a subject from a completely different angle. And I think AI. I've found that it's been amazing that way is to take something that is totally conversations unrelated to the subject matter. Obviously mine is book marketing and publishing. Looking at it could be golf or it could be healthcare.

Susan Friedmann [00:20:11]:
It could be something completely outside of the subject matter and just AI is able to give you a different perspective just like that. And I was like, whoa, I'd never thought of that.

Elissa Hecker [00:20:25]:
I agree.

Susan Friedmann [00:20:26]:
I love it for that. This is a great time, Alyssa, for you to tell our listeners more about you, how you work and how they can get hold of you.

Elissa Hecker [00:20:38]:
Thank you. I, like many of you, am a solopreneur. I've had my law office for well over 20 years. I love to work with small businesses, solopreneurs, entrepreneurs, as you said in the introduction and authors. I love to help you tell your stories. I love to help you get them out there with protection. I also help, especially with nonfiction. I do a lot of pre publication reviews, which is important for authors that help cover the torts.

Elissa Hecker [00:21:05]:
So defamation, right of publicity, right of privacy, obscenity, anything like that, in addition to potential copyright infringement and stuff that you often need if you want to get your media liability insurance and a publishing agreement. So part of what I love about my job is that I get paid to read books sometimes. And that brings me great joy.

Susan Friedmann [00:21:26]:
That's wonderful. What's coming to mind as you said, that too was on the inside page of the title page. You've got that copyright. Talk to us a little bit about the significance of that. And is it really copyright?

Elissa Hecker [00:21:45]:
I love that you asked that first part of the question. I'm not sure I understand the Second part of the question, what do you mean by is it really copyright?

Susan Friedmann [00:21:54]:
There's a standard that says this is copyright the title and it tells you, I don't know the wording off of hand, but the fact is you do put that in the beginning. Now, the book may or may not have gone through the copyright process, but yet I believe that a lot of people put that in.

Elissa Hecker [00:22:15]:
You're talking about notice versus registration. Now. I understand. Okay, so I want to come back just to say, I have been a copyright nerd my whole life. In kindergarten, I would put the C in the circle and I would write copyright the date, my name and all rights deserved. It's really all rights reserved. But as a five year old, I didn't know that. And so it.

Elissa Hecker [00:22:36]:
When you create something and if you want to register it with the US Copyright Office, which is easy, user friendly process and also very inexpensive, it's like $45 to $65 a registration versus dealing with the Patent and Trademark Office and stuff, you have the benefit of several things. You could just put the notice on, which is fine. It's notice to the world and it's not required to have copyright protection. But if you don't have a copyright registration, here's what you can't do. You cannot sue in federal court under the Constitution, which is where the Copyright act lives. You cannot get attorneys fees. If you win, you cannot get statutory damages. And that is a very important thing.

Elissa Hecker [00:23:20]:
So what you would end up suing is under like a state common law. Right. You could get $10 in damages, which means that the other side would have to show how much money they made off your work versus $150,000, which is set by statute. You can't file for copyright infringement unless you have a registration. So it's really important and it's really inexpensive and easy to do. So. So again, if it's an original work in a tangible medium, register it. It's kind of like a no brainer.

Elissa Hecker [00:23:53]:
This is part of your insurance policy. And then put the notice on, which is not required, but it is a notice to the world that this is yours. So it's another thing to have to say, oh, you didn't think you knew it was mine, but look at what's on the first page. You knew.

Susan Friedmann [00:24:07]:
Yes. As you know, we always have our guests leave our listeners with a golden nugget. You've shared so much great information, Alyssa, but leave us with a nice golden nugget. What would that be?

Elissa Hecker [00:24:20]:
Love that. Just do what you do best and know when to call the marketer, the lawyer, your insurance person, to help you with everything else around the business. But if what you do is really the writing and the expression and getting these stories out and telling whatever it is that you want to tell, just keep doing that. Everything else kind of becomes noise. And if you have the correct team of advisors around you to help you manage that noise, you can really focus on what makes you shine.

Susan Friedmann [00:24:52]:
Beautiful. Yes, focus on what makes you shine. Those are beautiful words. I love it. Thank you so much for sharing your wisdom, listeners. You're going to have to listen to this a few times because it was an incredible amount of not only good, but brilliant information that authors need to know. So listen to this several times again to get all those beautiful nuggets that Alyssa was able to share with us. And if your book isn't selling the way you wanted or expected to, let's you and I jump on a quick call together to brainstorm ways to ramp up those sales.

Susan Friedmann [00:25:31]:
Because you've invested a whole lot of time, money and energy, and it's time you got the return you were hoping for. So go to bookmarketingbrainstorm.com to schedule your free call. And in the meantime, I hope this powerful interview sparks some ideas you can use to sell more books. Until next week, here's wishing you much book and author marketing success.

Here's how to connect with Elissa:

Email Elissa for your complimentary 30-minute consultation

Website

Resources: 

US Copyright Office

Patent and Trademark Office