The Creative Penn Podcast For Writers
How does generative AI relate to fair use when it comes to copyright? What are the possibilities for AI licensing? Alicia Wright shares her thoughts on generative AI for authors.
In the intro, Publishing leaders share 9 Bold Predictions for 2025 [BookBub]; OpenAI launches Operator [The Verge]; Bertelsmann (who own Penguin Random House) intends to work with OpenAI to expand and accelerate the use of artificial intelligence (AI) in the media, services, and education sectors; Death Valley — A Thriller.
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Alicia Wright is an intellectual property lawyer for a technology company, and also writes science fiction and mystery as Alicia Ellis. With two degrees in computer science and an MFA in writing popular fiction, she is expertly placed to comment on AI as it applies to writers.
You can listen above or on your favorite podcast app or read the notes and links below. Here are the highlights and the full transcript is below.
Show Notes
You can find Alicia at WriterAlicia.com and on social media @WriterAlicia.
Joanna: Alicia Wright is an intellectual property lawyer for a technology company, and also writes science fiction and mystery as Alicia Ellis.
With two degrees in computer science and an MFA in writing popular fiction, she is expertly placed to comment on AI as it applies to writers, which we're talking about today. So welcome to the show, Alicia.
Alicia: Thank you so much, Jo. I'm happy to be here.
Joanna: Oh, I'm excited to talk to you. So first up—
Alicia: All right. Well, I should say that I got into AI and technology first. I was always one of those science and math people. Math was my favorite subject in school. Not a lot of people say that, but I loved math. I loved the sciences. I always was reading forward in my textbooks.
Then my mother didn't want us watching TV, so we read a lot of books. I got into writing poetry, writing song lyrics, writing short stories, and the creative side of me came out.
It never occurred to me to write something longer—because I was a math/science person—until I got into law school, and there you have to write all the time. You have to write briefs, you know, these 30 page documents.
Then it occurred to me that, hey, I'd like to write a novel. So I would say the technology interest was always there, and the creative interest, the writing, came later.
In my work as a patent attorney, I have encountered AI-related applications throughout the years, even generative AI technologies as far as 10 years back. So I had an interest in that even before it became relevant to the writing industry.
Joanna: So when did you get into writing fiction? How many years have you been writing fiction, as well as doing your incredible job?
Alicia: I have been writing fiction, specifically long form fiction, for as long as I have been a lawyer. The time is almost exact. I know this because I was in my final year of law school and sort of had this crisis. Like, I'm graduating law school, do I want to be a lawyer?
I spent time thinking about that. Just sat down for really a day and went through what I would do if it wasn't law. I decided that I did want to do law, but I also wanted to write novels.
So as soon as I graduated law school, I enrolled in some local writing courses. So I've been practicing law and writing for the same amount of time.
Joanna: Which is approximately?
Alicia: 17 years. I got into indie publishing in maybe 2013, but I've been writing for 17 and a half years.
Joanna: Brilliant. So you mentioned there that you, as a patent attorney, you look at AI applications. You did mention using a bit of generative technology there.
Alicia: In my business work, well, I see a lot of AI technologies in what I'm writing patent applications for, and that's what I was referring to before.
In managing a patent portfolio at the cybersecurity firm where I work right now, I definitely use AI technologies to help inventors organize their thoughts when they submit to us to do analyses. Sometimes I'm dealing with a huge patent portfolio, and AI can help organize the analyses and my thoughts on that.
I always tell it that it's my junior partner because it tends to go off on its own, and I like to reel it in to run the show, if you will.
I give it my ideas. Often I'll ask it to, say, “Give me five ideas on how to put these things together,” or, “Give me 10 ideas on how to put these things together.” Even if they're bad ideas, it helps me sort of organize my thoughts. Like, why don't I like these ideas?
So, together, we walk through what I want to do. We create a Save the Cat outline. Which I usually start it off once we have all the ideas on the table, I ask it to create the Save the Cat outline.
Usually, I have a lot of changes. We make those changes, and then we'll break it down into a scene list that follows the three act structure.
because, honestly, I'm no good with thinking about what does this setting look like. What kind of house is this? Bricks? Facade? I don't care. So the AI is really helpful with that.
There's a lot of editing, a lot of back and forth. AI is a great partner for brainstorming and plotting.
When we get into the writing, my authorial voice is really important to me, in part, probably because I have diagnosed OCD. I have experimented with using AI in pretty much every aspect of my process, but for me, personally, the writing part I have to do. I would spend more time editing AI output than I would have just writing it myself.
— and they'll catch the dictation error, so I have a much cleaner copy going forward. Then when I'm done writing, I'll use a little AI for developmental editing.
Joanna: I love that. You sound similar to me in the way you're using it. You're using the word ‘partner', your junior partner, your collaborator. You use the word ‘we', which I really like as well because I feel that too.
Like with Claude, I feel this is almost my—not so much co-writer—but like you said, collaborator. It really is a backwards and forwards way of doing it.
Alicia: It's so fun, and I feel like my work is better, that this brings out a better side of me. Connections that I hadn't made, problems that I didn't foresee. It's having a partner, so that it's improved. It's not just me, it's me plus some artificial intelligence.
Joanna: Yes. So we could geek out about how amazing it is all day, but I did want to ask you about some of the objections that authors have. You did this great talk at Author Nation, and you were so clear on it.
I don't think there are many people in our community who have degrees in computer science and law, and an MFA, and are an active indie author. I think you're the only person, right?
Alicia: Maybe.
Joanna: Maybe.
What are your thoughts on this, and how does it relate to fair use?
Alicia: So when I think of the word stolen, I think of an illegal taking. So I think, are we talking about copyright infringement here? I would say, in my opinion, that the work is not stolen.
The reason I phrase it that way, in my opinion, is because I'm sure a lot of folks know, there's ongoing litigation about whether the use of copyrighted works in training data is copyright infringement.
Until those are actually decided, until those cases are actually decided, I can't say definitively, but I feel pretty confident that the training of AI using copyrighted works is fair use.
Fair use is an exception to copyright infringement. Basically it says, yes, we copied copyrighted works, except we did it for a use where this exception is cut out.
There's four factors in the US that courts consider for fair use, and one of the key factors is, is your use transformative?
I think that's really important to what fair use is about. Have you created something new? Have you created something that can be used in a different way?
There's case law that's related to using copyrighted works, even for AI in the past, but not for generative AI in the way we're talking about now. I feel that the case law is pushing US courts towards saying that this is fair use. We will see, probably in a couple years, for sure.
I would say that I don't feel like AI is theft. I feel like it will be shown at a later date that AI is not theft, but I can't say 100%. I certainly think that it is premature to say that it is theft.
Joanna: It's interesting. I mean, I would have thought that the US would be further ahead on this. Maybe with your incoming Trump administration, those cases might get settled more quickly.
Here in the UK, our government has literally, like yesterday, come out with the AI plan, and they are almost pushing for an exception around data training in copyright, which is really interesting. We have a very different rule around this.
The argument here with the British government is that these strict things restrain innovation or restrict innovation. As you mentioned, fair use is so we can have more innovation, and we don't want to stifle that.
Alicia: Exactly.
They can't create anything original. They can only spit out things that come from other people's work. What are your thoughts on that?
Alicia: Calling AI plagiarism, saying that that's all it does, reflects a basic misunderstanding of how AI works at a technical level.
They've taken in—read, if you will—millions, billions of pieces of writing or images, in the case of the image generators.
Then based on basically statistics—it's much more complex than that, but I'm going to simplify it by saying it's a statistical model—it determines what token—a token could be a word or a symbol, like a period—what token comes after the previous token, and it forms output based on that, one token at a time.
The reason I want to emphasize that it's one token at a time is that you're not lifting even phrases from existing work. It's not at the phrase level. It's at the word level, just like you and I write.
You can't take a combination of words taken from millions of other works and say you plagiarized it because you took a word that was over here and a word that was over there.
It's not a logical reflection of how AI works at the technical level.
Asking, can it only create things that already exist? I would say humans also can only create things that already exist. We all learn from what exists. You're going to see cliche phrases in AI output because, statistically, you'll see words together that you often see together in writing.
So you're going to see things like, “She released the breath that she didn't know she'd been holding,” because you've seen it a lot of other works. In the same way that that's not plagiarism when you write it, it's not plagiarism when the AI writes it, either.
Joanna: I keep hearing people say —
with the assumption that only bad quality writing can be generated. So given that you and I use this a lot, our prompts are very, very different to somebody who is brand new to generative AI.
Do you think that the quality—and I know quality is a tough word—but—Is the quality of writing from generative AI when you use the right prompts?
Alicia: I think —
Especially if you're using AI for the writing part, say, for a first draft or for a final draft, however you use it in the actual writing part, I think it's important to prompt it to write like your authorial voice.
The more you do that, I think it's going to be closer to you and may even be better writing, assuming that your author voice is well developed. I think if you just ask the AI—well, I've seen from experience—that if you just ask the AI to write something, it's not necessarily going to be a style that's appropriate for what you're writing.
The more specific you are about how that writing should look, or even give it samples of your writing, describe your own writing, the writing gets better. By better, I mean closer to what you as an author want it to be.
Joanna: Yes, I agree. I mean, sometimes my prompts can be like 100 words. With Claude, I'm prompting with whole sentences and beats and all kinds of things that at the beginning of my use I didn't necessarily know how to do.
Again, coming back to the co-writer idea, the collaborator idea, it's like working with another person. You mentioned you're OCD. I'm not OCD, but I'm certainly into control around my writing.
I found it very hard to work with a human co-writer, but I love working with Claude for this reason.
Alicia: Right. I 100% agree with that. I've been using AI in my work, in my planning for my writing, and bits and pieces in my actual writing since it first went mainstream the end of 2022.
My prompts are so much longer now than they were then because I've learned how they're going to respond.
Then my prompts for different AI models are different. My prompts for Claude might be different than my prompts for ChatGPT because I have a sense of how they interpret things.
Joanna: Yes, and that is why I've been harping on about this for so long, because every month that goes past that people don't even try it for little things, they are missing out on time to learn what is essentially, what I think, it kind of underpins the next technological change in our society.
A bit like the internet changed so much, this is going to change so much. Do you feel it's that significant, as well?
Alicia: That is going to change a lot? Absolutely, and there's a lot of change that I look forward to. I'm interested in how the writing industry is going to look when these legal cases are decided. Speculate and say that it's determined that it is okay to train AI models based on copyrighted works.
I'm interested to see how those who are so anti-AI in the writing industry would respond to that. But more than that —
I'm hard of hearing, and I'm really looking forward to outside of the writing industry, some sort of captions. You know, they're making smart glasses. I want smart glasses with captions. I'm just waiting for it. I'm rubbing my hands together. I can't wait. Some of this stuff is going to be life changing.
Joanna: Wow, okay. So you mean you're looking at someone while wearing the smart glasses, and as they speak, you'll see captions of what they're saying?
Alicia: That's the dream.
Joanna: That is amazing, and of course, why wouldn't you have that? That just seems very sensible. So I don't even think that's that far away, surely. Let's hope so.
Well, look, let's come to those court cases. So in the USA, and there are still these open court cases against various AI companies, but there are also now far more companies that have done intellectual property licensing deals for data training, including some publishers and media companies.
Now, as we record this in the middle of January 2025, a company called CreatedByHumans.ai has just launched, and they're partnering with the Authors Guild in the US. The aim is to help authors license their IP for training and AI usage.
Now, this is a non-exclusive thing, and authors can choose how the data is used.
Alicia: I think the main thing I want to say about this is, if you're being offered a licensing contract for using your work to train AI, that I would jump on that.
It may be that soon courts bring down decisions that this is fair use, and in that case, they can use your work without a license.
So someone's offering you money for it now, I would say, get into those negotiations and think about getting that locked down.
Specifically with respect to terms, I would say, know the scope and the type of model that your work is going to be used for. If it's going to be used for a general purpose that could be used to create competing works, then maybe you want to be paid more than if it's going to be used internally at law firms, for example.
So know what it's going to be used for because that tells you what the value of this license is. I would say, make sure that your terms don't include derivative works, or are very specific about what derivative works are included in what you're giving.
You don't want someone using AI to generate works that are directly based off your work, like sequels. Just make sure that that's something that's out of the scope of the license.
It would exclude anything about sub licenses, unless you're getting paid for a sub license. Ideally, put a term on it, on the licensing of your work, because this area is developing.
You don't know what's going to happen five years from now, 10 years from now. There may be whole new clauses that you want in there because of how technology has developed.
So I would, personally, try to avoid a license that's 20 years or the term of your copyright because you want to be able to develop that license as the technology develops.
I would also limit how your work is going to appear in outputs, meaning the percentage of your work that can appear in outputs.
It is unlikely that with a general purpose chat bot where millions or billions of works are used to train that a significant portion of your work would appear in the output because it wouldn't have that large an input on the statistical model that is the AI model.
However, you don't know how big the model is going to be or how many works are going to be used to train it. So I think it could be worthwhile to have a percentage, say, only 2% of my work at a time can appear in any given outbreak.
That's something that they can program as a layer above a generative AI model, so that it sort of screens that before any output gets put out to a user. So that's something that I would have in there as well.
In general, make sure your contract has remedies, so that if there's a breach, you can cancel the contract, for example. As opposed to just getting paid out, or whatever remedies you prefer, make sure they're outlined in there.
Ideally, you want a right to audit what's happening with your work in the training, so that you can take advantage of those remedies. If you can't see what's going on, then the remedies aren't doing you much good.
Joanna: Those are all really useful things. It's funny because the first thing you said was, get into this because things might change, and we might not get anything if it becomes fair use.
The other thing I thought is we almost have a burning platform on the creation of synthetic data. So I've been looking at the OpenAI's o1 model, and some people are saying that one of the reasons it was created is because it can create really good synthetic data to train the o3 models.
Alicia: Oh, wow.
Joanna: I know. I was like, wow—
Although I guess the original sin, as such, may still stand. I don't know. I mean, any thoughts on that?
Alicia: Well, I hadn't heard that about the o1 and the o3 model, but synthetic data, that's something that I'm excited about because I want these models to improve. I want them to use my work to train the models. Synthetic can write more like me, make my job easier.
I'm excited for more training data. I hope that more folks in the writing industry get on board and allow their works to be licensed if allowance is needed. Even if allowance is not needed, I know that folks in the AI industry are feeling the pushback from the writing industry, and it may slow them down.
I don't want them to be slowed down. I want to see this stuff develop.
Joanna: It's interesting that we both want our data in the models. Partly, I also think there's a big change in generative search, in that I mainly use ChatGPT now to do my searches.
So I've been trying to do sort of book discovery, you know, “Give me 10 books that are action adventure thrillers with a female protagonist set in this area.” Then it gives me 10, and I'm like, “Well, what about this book by JF Penn?” I'm like almost trying to train it to think of my books as well.
If we're not there, we just won't be found.
Alicia: If we're not there, they just won't be found. What do you mean by that?
Joanna: Well, as in, the models have access to certain data and certain data that's on the internet. So a lot of the time, it can look at Goodreads, or it can look at Amazon.
I want ChatGPT and Claude to know J.F. Penn, so that if someone is searching for something to read—and a lot of the apps that go on top of things now are powered by these tools—
Alicia: Oh, for sure. I know there are anti-AI folks in the writing industry who don't want AI anywhere near their work. I'm more what you just said. I want AI to be able to find me. I want AI to be able to write more like me.
I believe strongly in my own creativity and my ability to create something that is specifically me, and because of that, I'm not concerned about AI being near my work. I want it to help me.
Joanna: I love that, and I actually think the same thing.
I wonder if this is creative confidence that comes from—like both of us have been 17 years writing, and previously I was in tech as well. Not quite as deep as you, but I'm confident with tech.
So this kind of creative confidence in our own work and in our own worth that some newer writers might not have, I guess.
Alicia: This may be strange coming from someone who is very fond of AI, I have a lot of fun with it, but I would say that maybe building that creative confidence means not using AI for a while.
It means discovering who you are as an author, what sort of things you like to write before bringing in a partner, be it AI or a human writer of another sort. Really find your uniqueness and your identity as a writer before you start adding tools into the mix.
Joanna: That is actually a really good point.
Then I just wonder if maybe people who are younger in the usage of these tools, or people younger in their journey, or just physically younger, are going to do things differently. Like you and I grew up without iPhones, and we grew up without television.
My mum was the same as your mum. We weren't allowed to watch TV until I was about 12. So I feel like maybe people will develop their voice differently now.
Alicia: That's a really good point, and I honestly don't know what that will look like, but I'm excited to see it.
Joanna: Yes, me too. Okay, so let's just circle back on copyright because another sticking point for authors in using these tools is—
How is it in the US? Because it's different in the UK.
Alicia: Right. In the US, first of all, expression that is generated by artificial intelligence, by a machine, is not copyrightable. However, your authorship is copyrightable. Thus, when you combine your authorship with an AI-generated output, then the part of that that is your creative expression is still copyrightable.
So what that means is, if there's a combination, if you're using AI as a partner, then whatever expression that you contribute to that final product is copyrightable in the US.
Thus, say someone was to copy a chapter of your book that has you in it, as opposed to telling the AI in a short paragraph to write a chapter, if you've been a part of selecting what goes in that chapter, arranging that chapter, editing words that were initially output by the AI, that's all your expression.
One cannot copy that chapter without copying that expression, which is yours.
The Copyright Office has confirmed this. This isn't all theoretical here. The Copyright Office has handled some cases.
[Note from Jo — here are some excerpts from the US Copyright Office info, and also the UK, as they differ. Please check your jurisdiction. ]
In the UK, Section 9(3) of the Copyright, Designs and Patents Act 1988 around authorship and ownership of copyright states:
In the case of a literary, dramatic, musical, or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements necessary for the creation of the work are undertaken.
In the US, copyright is all about ‘human authorship,’ and in March 2023, the United States Copyright Office issued guidance around the definition of human authorship in an age of generative AI. They note:
A human may select or arrange AI-generated material in a sufficiently creative way that ‘the resulting work as a whole constitutes an original work of authorship.’
Importantly, they also say,
This policy does not mean that technological tools cannot be part of the creative process. Authors have long used such tools to create their works or to recast, transform, or adapt their expressive authorship.
For example, a visual artist who uses Adobe Photoshop to edit an image remains the author of the modified image, and a musical artist may use effects such as guitar pedals when creating a sound recording.
In each case, what matters is the extent to which the human had creative control over the work’s expression and ‘actually formed’ the traditional elements of authorship.
There was a semi-well known case with a graphic novel where the author had generated each image using AI, but the copyright office determined that the arrangement of those images, the selection of those images and arranging them into a story, was copyright protected.
Thus you can't just take that graphic novel and copy it and sell it, because the author's expression is in there. That's the case with cover art as well as written work.
Audiobooks with AI narration are a little different because your copyrighted expression is already in the input, and the output is just your words spoken. So you don't even have to edit that output, it already has your expression in it, and is copyright eligible in the US.
I know in the UK, there are even stronger protections for copyright eligibility of AI-generated works. I think if you direct the creation of it, it's yours.
Joanna: Yes, and I think that's probably why so many people are putting offices here. OpenAI has an office here. I mean, Runway ML, the video generator, they've got an office here, and are partnering with the UK film company. It's essentially like if a machine generates something, it belongs to the person who who directed it.
I was thinking about this, like I like the word director because, increasingly, if you think about a film director—and you know, people will have their favorite movie directors—
So I almost wonder if that's the direction we're going is—This much bigger role, where we can do much bigger things, with a lot more help.
Alicia: I think so. I think that there's a lot that we can do with AI to create and expand our creativity besides just writing. We can direct a little movie now ourselves with AI-generated visuals.
However, I also predict, I don't know for sure, that we're going to see copyright eligibility of AI-generated outputs that are unedited in the US. We're going to see some of that become protectable. Right now, that's really shaky ground, except with the exception of audiobooks and the like.
It's really shaky ground, say that an AI-generated image as is, would get any kind of copyright protection. I think we may see that depending on how specific your prompt is, that there may be some copyright protection based on the creativity that you put into that.
Joanna: Yes, I think so. As these models get better and better, you can have a much bigger process. So let's come to that, because we're still in these early days, like we're literally like 2001 in terms of the internet.
Sam Altman, the CEO of OpenAI, just shared in a new blog post, Reflections, last week,
I'm like, hell yes, give me some agents to do things. I'll do the stuff I love, and my little AI agents will do the rest. I mean the word ‘agent' is difficult in the publishing industry, but think about little bots or little employees doing your work.
Alicia: I'd personally love a social media agent because I am no good at keeping up with what's going on my social media accounts. They will go dark for a month and a half, and then I'll remember that I have them and should use them. So I'd love a social media agent.
I kind of have a custom GPT, a prompt set up to help me plan my social media. I've actually tried some products that try to be social media agents that I don't love.
I feel that the writing industry is going to be reluctant to take on these agents. Just based on what I've seen about how protective the writing industry has been—some people in the writing industry—about related industries, like cover artists and voice narrators, how protective they've been wanting writers who want to use AI to hire a cover artist.
They're being very insistent about that, some anti-AI folks. They're being very insistent about hiring a human narrator for your book. I think that we may see that same protectiveness over virtual assistants.
I think we may see some pushback from this same segment of the writing industry that's opposed to using AI-generated cover art.
We're going to see some pushback saying, hey, you should hire a virtual assistant instead.
Joanna: I totally agree, but I think that people are going to use these things anyway. Especially, coming back to creative confidence again, if you are strong in what you want, then actually using these agents.
You mentioned a chain of prompts earlier, and I just have these amazing ideas about how—
There is absolutely no way it would be affordable to have that where humans do it.
Alicia: Absolutely. Yes, affordability is a huge issue. If you weren't going to hire someone, I don't understand the objection to passing along to AI to do it for you so that it gets done, as opposed to not getting done.
I've actually used virtual assistants in the past, and it didn't work so well because I'm so particular. First of all, I felt like a jerk wanting to tweak things all the time. I don't feel like a jerk when I talk to AI. Then it wasn't saving me time because of the amount of time I was spending tweaking things.
So for me, having an AI social media agent would be something that I wouldn't hire someone for anyway. I don't think that's a requirement for using AI, but it expands what we can do, having these agents, having AI in general. I love that.
Joanna: I mean, I think —
I see that one could almost have an agent per book even, who's responsible for making sure that book gets marketed.
I mean, we've got multiple books, and I find myself marketing whichever one that catches my eye, but there's so much of a backlist I just completely ignore. So I'd really love to have things surfaced from my backlist of work. Also things like having an AI—
They only just started it like yesterday, the ChatGPT Tasks.
Alicia: Tasks? Oh, I have not. I noticed it a couple days ago, and instead, I started using Projects. I recently restarted my ChatGPT Pro or Plus account. I sort of switch which AI I want to use at any given time.
So right now I'm digging into the ChatGPT projects, but digging into the Tasks is definitely on my to-do list. I'm hoping I can get it to remind me of stuff that we've generated that I need to do.
Joanna: So for people listening, this is brand new. It's very, very small, as in you ask it to do a task, and it will do something for you at a certain time. So I've just set my ChatGPT so that —
Basically, I gave it a list of things I'm interested in writing for my fiction, and then it'll bring me five headlines that I can click through to that will just give me ideas. So every morning, I get this really cool message, and then I go and just have a look. It just helps me think about stuff. So that's my first task, that's what I did.
Alicia: I love that. I'm totally going to steal that.
Since I'm into near future science fiction, I make a point to read technology magazines and subscribe to them, but then I have to actively go to those sources and read them. I love the idea of having them come to me like that. So I've just stolen your idea, Jo.
Joanna: Fantastic. Well, I wanted to mention it because this is an example of something where it will do some work for you and it helps you, but it's certainly not writing your book. So for people listening, please do steal that idea. That is a ChatGPT task. So we are out of time.
Alicia: As we said at the beginning, I write under the name Alicia Ellis. My website is WriterAlicia.com. My social media handle across the board, across everywhere, is @WriterAlicia.
I use Instagram the most, and BlueSky I'm just getting into. Like I said, I go dark for an extended period of time, and then remember that social media exists. So WriterAlicia.com is the main place you can find me.
Joanna: Great. Well, thanks so much for your time, Alicia. That was amazing.
Alicia: Thank you, Jo. I really appreciate you. This has been fun.
The post Fair Use, Copyright, And Licensing. AI And The Author Business With Alicia Wright first appeared on The Creative Penn.