From the Legal Hotline (1-877-NEWS-LAW)
Q. I had this question posed to me the other day and I wasn’t sure how to reply because I know the answer for the newsroom is “absolutely not!” The question is, can they take a photo and run it through AI or Photoshop for alterations if it is going to be used in an ad and is approved by the client? The example that was given me was a medical employee dressed in scrubs was changed to be dressed in a suit … “more professional.” As always, I appreciate your wisdom on the weird stuff from us.
A. This is a great question. Generative AI is a new technology the courts are just starting to grapple with, and there are many legal issues associated with its use. As a result, I would be cautious about using AI-generated images because you often don’t know what source material AI uses to “mature” the image. For example, does copyright, patent, and trademark infringement apply to AI creations? Is it clear who owns the content that generative AI platforms use to create for you or your customers?
If the underlying work AI uses is in fact copyrighted, the question will be whether the AI image is sufficiently different from its source material to become unequivocally “transformative.”
Or is it insufficiently transformative from the existing, protected works to be an unauthorized derivative work?
So, for example in this case, if the medical employee dressed in scrubs is an image owned by Getty (an image licensing service), does AI changes to a suit mean it is so different from its source material to become unequivocally “transformative” such that copyright does not protect it? Or is it insufficiently transformative such that it is an unauthorized derivative work? If Getty has rights to the medical employee photo, will it still scrape websites for the image, and send a copyright infringement letter demanding damages? It’s difficult to answer these questions.
Until the law is clearer, one rule of thumb is to treat AI-generated photos similar to how you treat photos in general and steer clear of photos you are not authorized to use or where there is uncertainty about ownership.
I also reached out to Jim McGuire at the Thomas LoCicero firm. He points out that a key concern in all these matters is who owns the copyright in the original (unaltered) work, and when they licensed the work, did they grant the right to alter or revise it? In other words, even if an alteration might not violate the copyright laws, it might breach the license agreement with the author of the photo.
Similarly, what rights were granted by the model posing in the photo? Did they agree that their image could be used even if their attire/appearance was changed? If not, using the image could violate their rights of publicity.
For the time being, and until those questions are answered, Jim agrees it’s best to be cautious in this area.
Q. Can you let us know about the legality of an advertisement seeking “specialized” employment of a halal food chef with 10 years of experience in a specific field. The ad says the chef must be “a Muslim and be able to communicate in Arabic and English as it is the business need due to predominantly Muslim Middle Eastern clientele.” Your opinion is appreciated.
A. My understanding is religious corporations, associations, educational institutions, or societies are exempt from the federal laws that EEOC enforces when it comes to the employment of individuals based on their particular religion. In other words, an employer whose purpose and character are primarily religious is permitted to lean towards hiring persons of the same religion. However, other employers should avoid questions about an applicant’s religious affiliation.
In this case, it appears that the employer is or will be a “business,” as indicated in the ad at the bottom, not a religious association or institution. If that is the case, it seems like requiring the employee to be a particular religion is problematic.
Q. What are the notice requirements in Florida regarding physicians that terminate their practice, and should any required notice be a legal ad or notice as opposed to a press release?
A. Florida law requires “medical records owners” that terminate a practice to notify patients of the termination using either a notice in a local newspaper or notifying patients in writing of certain information. Here, the record owner appears to be providing remote care via an
entity located in South Florida. I would think they have the option to run an ad in a newspaper in that area and in other local newspapers where remote care has been provided.
Q. Are transportation charges like newspaper delivery charges subject to state tax? If not, what conditions must be met to be exempt from the tax?
A. Rule 12A-1.045, FAC, relating to “Transportation Charges,” states in part as follows:
(1) “Transportation charges” include carrying, delivery, freight, handling, pickup, shipping, and other similar charges or fees.
(2) Transportation charges which are not separately stated on an invoice or bill of sale, but are included in the sales price of taxable tangible personal property, are subject to tax.
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(4)(a) The charge for transportation services is not subject to tax when both of the following conditions have been met:
1. The charge is separately stated on an invoice or bill of sale; and,
2. The charge can be avoided by a decision or action solely on the part of the purchaser.