Dragons, White Walkers and AI, oh my!

If you are a big Game of Thrones or fanfiction lover, buckle up! From one (legal) battlefront to the other, OpenAI has been under fire recently for the development of their artificial intelligence (AI) computer program ChatGPT. The Authors Guild and 17 individual authors (“Authors”), including “Game of Thrones” novelist George R.R. Martin, filed a lawsuit in September 2023, against Open AI for copyright infringement.

But before we dive into that, let’s cover the basics of ChatGPT.

Let’s Break It Down: ChatGPT Basics

As a zillennial still trying to figure out how ChatGPT functions, I can attest to the fact that the technology is complex territory.

In layman terms, ChatGPT operates similarly, though not identically, to Google – which is a search engine that uses algorithms to find items or images relating to term(s) you type into the google search bar via the Internet. Whereas with google searches, people typically type a word or phrase, looking for a document with that identical word. With ChatGPT, the user can type a question into a search bar using natural language and get a specific answer. A user also could input "Write a Game of Thrones Fanfiction," and get an entire short story. ChatGPT uses algorithms but, unlike Google searches, it must be “trained” by copying lots of existing data, like text and images.

Now that we've got the basics of ChatGPT covered, let’s turn to why authors like Martin and 16 others claim OpenAI is liable for copyright infringement.

ChatGPT is fighting dragons

The big issue is whether OpenAI can “feed” ChatGPT copyrighted written works, like the entire series of Game of Thrones, without permission from the authors themselves.

In their lawsuit, the Authors (both the Guild and individuals) argue that ChatGPT used an algorithm totally based on “systemic theft on a mass scale.” The Authors claim OpenAI copied many of their works without their permission. Their lawsuit describes multiple instances where ChatGPT created complete prequels, sequels, and accurate summaries using the same characters from the original novels in response to search requests.

For example, independent developer and big Game of Thrones fan Liam Swayne even used ChatGPT to create accurate versions of the two final books to a series that Martin is currently writing. Fans have been waiting 12 years for these books, so you can imagine their major disappointment when Swayne took down the written curations due to the lawsuit.

The Authors want damages of up to $150,000 per infringed work for the lost opportunity to license their works – so the stakes are higher than even the Battle of Winterfell!

Can OpenAI continue to sit on their throne?

OpenAI admitted to using these copyrighted works to train ChatGPT, but they might be able to win this lawsuit with a type of defense called “fair use,” which is when someone is allowed to use a copyrighted work in a way that would typically infringe if it does not unfairly take away from a copyright owner’s right to control and benefit from the work. Fair use is a defense that can apply to any copyright infringement case, including use of musicals or digitizing books. If you are curious to learn more the full extent of its application, read more on fair use here.

In order to make their decision, the judge will need to consider four statutory factors and see whether they weigh in favor or disfavor of OpenAI’s fair use argument.

1. Purpose and character of OpenAI’s use of the work

There are two issues relevant to a defendant’s purpose and character of their use – whether use is commercial (or not), and whether the use or work is transformative. Each of these can point towards or against fair use.

One factor that courts will consider is whether OpenAI’s use of the copyrighted works is for commercial or noncommercial purposes. Noncommercial uses, such as research and teaching, usually favors fair use. The purpose of ChatGPT is commercial use because it generates a profit via a paid subscription called ChatGPT Plus.

But there still might be fair use if the work created by ChatGPT, or its use, was strongly transformative. In other words, if ChatGPT were adding something to the Authors’ novels that would transform the work into something new and different, the court might lean in favor of fair use.

For example, some cases find that critique, such as a parody, even if it is commercial can be a transformative work. In addition, a use can be transformative if it’s very different and socially beneficial. For example, as noted previously, scanning books to create Google Book Search that helps researchers and students was considered fair use. Since ChatGPT is arguably providing a very different service, somewhat like Google Book search, that could weigh in favor of fair use.

2. Nature of the Authors’ works

The court will also consider the nature of the original copyrighted work and how creative it is. The more creative a work is, the more copyright protection it gets, along with less room for fair use. The nature of the Authors’ works is super creative, especially with the fictional worlds of Game of Thrones. The works generally have a thicker level of protection against infringers, meaning less likely fair use. However, courts have found that if the defendant's use is highly transformative, then that favors fair use.

What does that mean for Open AI? This factor could partially weigh in favor of OpenAI’s argument for fair use because of ChatGPT’s highly transformative use in providing new ways to search, as well as create, new storylines and continuing the next chapter of Authors’ works. But the factor may also weigh against fair use for stories that have not been published yet by the Authors themselves, especially the case with Martin. So, the outcome of this factor may not be the same for all works in the lawsuit, or even all works by an individual author.

3. The Amount and Substantiality of the works used by OpenAI

The court will also look at how much of the copyrighted works OpenAI copied and whether OpenAI took more of the work than what was necessary? Generally if a defendant takes a large part, or the “heart” of the work, that disfavors fair use – unless the defendant’s work or use is considered highly transformative.

Here, OpenAI could argue this factor weighs in favor of fair use because even though they admitted to copying 100% of the Authors’ novels in training ChatGPT, the program’s use of them in creating new storylines and images can be considered a strongly transformative use. Of course, if the court disagrees that it's strongly transformative, this factor would weigh against it.

4. The effect of OpenAI's use on the Authors’ actual and potential market

Finally, the court will consider the effect of OpenAI's use on the authors’ actual and potential markets. Markets for these Authors includes markets for publishing their newly written works and licensing to create derivative works, which is a work based on another work that already exists – like making a movie or TV show based on a book.

In this scenario, OpenAI supersedes the authors’ market to license their works and the ability to make profit from their current and future written works because ChatGPT is basically replacing these Authors in the industry of creating and publishing their novels. For these reasons, this factor does not necessarily weigh in favor of fair use by OpenAI.

So what happens next?

Although these are fully my thoughts and opinions, it will ultimately be up to the court to decide.</spa

As ChatGPT continues to develop innovative ways to use their software for entertainment and content creation, we also simultaneously see the severe damage it can cause for creators we know and love. It is decisions on cases like this one that will determine the future of rights for authors and their rights to reign in the Kingdom of the North and beyond. What do you think the court should decide – is OpenAI guilty or not guilty of copyright infringement?

Francesca Zepeda
Associate Blogger
Loyola University Chicago, School of Law Class of 2025