Author’s Note: Full disclosure, my full time job is in software (healthcare sector). I’m the Vice President of Compliance, meaning I’m highly involved in data security and data sourcing. I live and breathe data issues not only in my publishing life but in my 8-8 (ha!) as well.

Disclaimer: I am not an attorney and nothing in this post should be construed as legal advice. Please consult an attorney in your jurisdiction should you require legal advice. These opinions are my own and are not intended to represent my employer.

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The [Copyright] Act “reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.”

Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)

Right now, a bot is scraping this for my words to train a machine to sound like me. Well, not like me specifically, because I’m a nobody, but like a human who is well-read and well-studied. A human who happened to get an 800 on the English portion of the SAT. Who has a degree in English literature from a highly ranked university. Who has written sixteen or more books. Who has a literary agent. Who has spent seemingly endless waking moments since she was four chasing the dream of becoming a published author. Who has sacrificed other dreams, other lives, other paths in that pursuit. Who has cried, screamed, bled, sweat, studied, pulled all nighters, read millions of words, wrote millions of words, all pushing toward that singular goal.

Thirty-one years of language to eat. Steal. Regurgitate for a profit I’ll never see.

No big deal.

Bonus, it will also get a real legal citation it didn’t just make up. You’re welcome, ChatGPT.

It’s hard to figure out how to come at this topic, honestly. There’s a legal angle. What are the four factors that make a copyrighted work “fair use?” A technical angle. What is data scraping? A large language model (“LLM”)? An emotional angle. Why are writers and artists and actors so pissed? A philosophical angle. What does it even mean for something to be art?

I know them all. Each one pumps through my rapidly beating heart, coursing through my veins, itching to be freed through my fingers. Tabs fly open as I try to discern what angle I’ll take. On my right screen, tabs upon tabs upon tabs of Westlaw copyright cases. On my left screen, emails and articles about LLM and NLP (natural langauge processing) and the differences between the two. Techopedia ready to go, to explain. All the while, thoughts of that horror movie M3GAN flash through my mind.

Does AI write itself as the villain, I wonder?

Perhaps that’s how we know it truly is starting to come alive…

Something shudders through me. An echo. A whisper against the back of my neck. Somewhere, a ripple.

My ADHD flies into overdrive. Speared on by the unknown. The unseen. Desperate. Trying to outpace a thing I know I cannot outrun.

On the right screen, I open the Author’s Guild’s open letter to generative AI leaders: Open AI; Alphabet; Meta; Stability AI; IBM; Microsoft—God there are so many already, since yesterday it seems—begging them to stop this madness, to pay writers their fair share. Another tab. The NPR article about median writers’ income for 2022 being $23,000. Poverty levels for the US for 2022. $13,590 for an individual. $18,310 for two. $23,030 for three. There it is. Poverty comes quickly. A single child and a spouse not working for whatever reason, there are so many reasons these days. A single parent and two kids. Options there, too. Nevermind I don’t know anyone who can live off $23,000 on their own in Philadelphia and publishing doesn’t pay for an author’s healthcare.

Our dreams. Our dinner. Our lives. Our livelihoods. Is there nothing they can’t have?

They’re the newage Ursula, stealing our voices and our princes and our happily ever afters. There’s probably a book there somewhere if the bots don’t scrape it first.

My neck aches. I press my fingers into the place where my skull meets my spine, molding my skin like clay. Skin. Clay. Sleep. My stomach growls, reminding me of my humanity. I ignore it. Move forward.

I’ve written this before. Literally and metaphorically. I’ve been drafting it in my mind. But a draft I spent hours on also disappeared. I thought about giving up. It doesn’t matter anyway. I can’t keep up. But it has to come out. I’m angry enough to write it again. And again. And again. Our dreams are being fed to the machine while we aren’t being paid enough to feed ourselves.

Virginia Woolf comes to mind. Money and a room of one’s own is needed to write fiction. Art is for the economically privileged. It always has been. Does it surprise us that art was the first to fall victim to Silicon Valley?

The fair use doctrine permits courts to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.

Stewart v. Abend, 495 U.S. 207 (1990)

So far, there are concrete answers. What is fair use. What is LLM and NLP. Why are authors and artists and actors mad.

What is literature, though. That has me frozen.

Except… maybe there aren’t concrete answers for everything.

I turn to the case the Author’s Guild has cited, Andy Warhol Foundation for the Visual Arts, Inc v. Goldsmith, 143 S.Ct. 1258 (May 18, 2023). In it, the court cites to Andy Warhol’s famous Campbell’s Soup Can series.

The court notes the purpose of the Campbell’s logo and label was commercial: to advertise soup. Warhol’s purpose in reproducing the image was the opposite: to comment on consumerism. Therefore, the use was fair.

Controversial statement but… I wonder if the designer of the label, someone who was presumably a real human who didn’t profit off the can label nearly as much as Warhol profited off the reproduction of the soup label, finds that particularly fair.

I wonder if that person cares they are unknown for their creation while Warhol is known for its reproduction.

I wonder if I am also afraid of AI replacing me into anonymity.

Art is my only potential legacy, after all.

Is it the intent of our art that makes it art, then?

Because as someone who has spent a lot of time in writing workshops listening to snobbery about the bastardization of literature due to genre fiction’s pandering to commercialization; who has also spent a lot of time listening to programmers talk about programming rules that sound a lot like intent, let me tell you about how that is a slippery slope.

The court goes on.

The Court of Appeals noted, correctly, that ‘whether a work is transformative cannot turn merely on the stated or perceived intent of the artist or the meaning or impression that a critic—or for that matter, a judge—draw from the work. [O]therwise, the law may well recogniz[e] any alteration as transformative.'”

Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith, 143 S.Ct. 1258 (May 18, 2023) (Internal Citations Omitted)

Not intent then. Or at least not entirely.

Relief floods me.

Still, legality and literature have entangled in my mind. Day job and dream job comingling again.

What makes something art.

Life.

The answer is life.

It’s a falsity that you must suffer to create art. But you must live. My art requires suffering because that’s my lived experience. All that’s truly required, however, is a lived experience. Write what you know. You.

Art is about the individual life experience. The individual voice. The individual expression. Not a little of me and a little of you and a little of him and a little of her and a little of them strewn together to create one voice, one story, one experience. Art requires many singular voices and stories and experiences. Canon but more importantly, culture, then becomes that body of singular works. The thousand, single stories. Then a thousand more. Art isn’t a single story put together by a thousand voices. That’s what creates the danger Chimamanda Ngozi Adichie warns of in that TED talk. The danger of the monolith. AI puts together experiences that cannot be unified or reconciled. That’s exactly what marginalized voices have been fighting against except so much worse. It’s the stripping of language of all its nuance. All its individuality.

We have forgotten.

Words have power.

We have to pay people appropriately, so they can wield them well.

Maybe then we will remember.

And wake.