Navigating Generative AI's Intellectual Property and Legal Risks - Episode Hero Image

Navigating Generative AI's Intellectual Property and Legal Risks

The Digiday Podcast · · Listen to Original Episode →
Original Title:

TL;DR

  • Brands are increasingly mandating generative AI use for content creation due to efficiency and cost-effectiveness, shifting from initial fear to embracing the technology as a core production method.
  • Generative AI output may not be copyrightable without significant human creative input, creating uncertainty for brands relying solely on AI-generated content for ownership.
  • Companies using generative AI must navigate the risk of outputting content too similar to existing copyrighted works, even without intentional copying, potentially leading to infringement claims.
  • Trademark law's insistence on consistent control by the owner creates tension with user-generated AI adaptations of brand logos and mascots, potentially diminishing legal protection.
  • Existing contract language for talent and content distribution may not adequately cover AI-generated replicas, necessitating updated terms to manage likeness usage and prevent unauthorized AI replication.
  • The legal recourse for IP owners whose content is used in generative AI training or output largely relies on existing copyright and fair use principles, though the speed and scale of AI present new challenges.
  • Generative AI's ability to rapidly create replicas of individuals or copyrighted works raises concerns for talent and brands regarding control over their likeness and intellectual property.

Deep Dive

The rapid integration of generative AI into brand marketing presents a complex landscape of evolving legal and strategic considerations, particularly concerning intellectual property. While companies are increasingly embracing AI for efficiency, the underlying copyright and trademark protections for both AI-generated content and brand assets remain a significant area of uncertainty, necessitating careful navigation by legal teams and marketers alike.

The legal framework surrounding generative AI is still coalescing, with much of the current litigation focused on the training data used by AI models and the copyrightability of AI outputs. Brands face a dual challenge: ensuring their own AI-generated content does not infringe on existing copyrights, and protecting their valuable intellectual property, such as logos and mascots, from unauthorized use or adaptation by AI. The U.S. Copyright Office's stance on AI-generated works and ongoing court cases are slowly shaping precedent, but many questions persist. For instance, the similarity between AI-generated output and existing works can lead to copyright infringement claims, even without intentional copying. To mitigate this, companies are advised to use AI output as raw material, subject to significant human review and creative input, and to maintain detailed records of prompts used.

Furthermore, the protection of brand identifiers like trademarks and logos is complicated by AI's ability to adapt and recontextualize them. While existing trademark law emphasizes consistent use and control by the owner, the decentralized nature of AI-generated content poses a risk of diluting these protections. Companies are increasingly seeking enterprise-level AI tools that offer closed systems, preventing their proprietary inputs from training public models. Legal teams are actively drafting new contractual language to address AI usage, distinguishing between the rights to use content for AI training versus using AI to generate content featuring brand assets. This includes clarifying terms for talent contracts and distribution agreements, as well as addressing name, image, and likeness (NIL) rights in the context of AI replication.

Ultimately, the integration of generative AI requires brands to proactively manage IP risks and strategically define their engagement with these technologies. While the potential for efficiency and cost savings is significant, the legal ambiguities necessitate a cautious and well-informed approach, with a strong emphasis on contractual clarity and ongoing adaptation to evolving legal interpretations.

Action Items

  • Audit generative AI usage: For 3-5 current marketing campaigns, identify specific tools used and document prompt-saving protocols to mitigate copyright infringement risks.
  • Draft AI usage policy: Define acceptable use of generative AI for content creation, specifying requirements for human review and approval for 100% of final marketing assets.
  • Evaluate AI tool licenses: Review terms for 3-5 primary generative AI platforms to ensure inputs are not used for model training or output for other users.
  • Track brand asset adaptation: For 5-10 key brand identifiers (logos, mascots), monitor for unauthorized AI-generated adaptations to protect trademark consistency.

Related Episodes

Key Quotes

"Brands had a lot of a lot of fear and a lot of concern about it being used in any kind of marketing just because and we can get into this in more detail if you'd like but in general there's a feeling that unlike in the old days where you knew that your marketing material was created by a human sitting at a desk using traditional equipment you know with generative ai you you're getting material that you know is based on prior work you don't know exactly what the secret sauce is that produces it and so for for brands they're initially there was a lot of a lot of concern about sort of anything touching generative ai and in fact early on there was a a lot of activity around brands instructing their ad agencies their design firms production companies do not you know use any generative ai tools in connection with our work."

Rob Driscoll explains that early in the adoption of generative AI, brands were hesitant due to concerns about the origin and potential copyright issues of AI-generated content. This led to widespread instructions for agencies to avoid using these tools. Driscoll notes this initial fear has shifted significantly in the past year.

"And so for for brands they're initially there was a lot of a lot of concern about sort of anything touching generative ai and in fact early on there was a a lot of activity around brands instructing their ad agencies their design firms production companies do not you know use any generative ai tools in connection with our work as I was saying at the outset though that that has kind of flipped such that now a lot of companies are embracing it and instead of prohibiting the use of generative ai they're mandating it they're saying this is a more efficient and cost effective way to produce a lot of content so not only are we not telling ad agencies for example not to use generative ai in many cases we're requiring them to use it because we think that's the most cost cost effective way to get the job done."

Driscoll highlights a significant reversal in corporate attitudes towards generative AI, moving from prohibition to mandating its use. He explains that this shift is driven by the recognition of generative AI as a more efficient and cost-effective method for content production. This demonstrates how practical business considerations can override initial legal or ethical concerns.

"Well there is some risk and in the United States the way copyright law works um if if a person or company generates something new that is that is you know basically the same as an existing piece of work uh there that could be copyright infringement even if there's not an intentional copying happening and so that's that's really the fear with generative ai is that a company is going to use an ai tool to produce some creative material and and just not know that in fact the output is closely similar to something that already exists out there so that that is that is still a concern."

Driscoll addresses the core copyright risk associated with generative AI: the potential for unintentional infringement. He clarifies that even without deliberate copying, if AI output closely resembles existing copyrighted work, it can still lead to legal issues. This underscores the ongoing challenge for companies in ensuring their AI-generated content is original.

"Well you're identifying what is still a murky area in the law as it applies to generative ai output there are there are questions about whether gen ai outputs are copyrightable probably ultimately will depend on the level of human involvement um in the product so so there is a big big question there but I would say that that too to me is an area where different brands will have a different perspective on what that issue means to them."

Driscoll points out the uncertainty surrounding the copyrightability of generative AI outputs, noting that it likely hinges on the degree of human involvement. He suggests that brands will approach this ambiguity differently based on their individual priorities and risk tolerance. This indicates that legal clarity is still developing in this domain.

"One thing that I think is important that the that the generative ai output is is more of a starting point as opposed to the end product so there'll be some human intervention human creativity applied even just it's valuable just to have a human look at the thing and it's not foolproof obviously but but you know one might look at something and say oh does that does that sort of remind me of something that's out there does that look like it might be an issue."

Driscoll offers a practical strategy for mitigating AI-related risks: treating AI output as raw material rather than a final product. He emphasizes the importance of human review and intervention to identify potential issues and ensure creative input. This approach suggests a hybrid model where AI assists, but human judgment remains critical.

"Well there are a bunch of issues that that come up with that scenario one thing is that my experience is that many companies at least the ones that are most more sophisticated that are using generative ai are you know they're not using off the shelf publicly accessible tools they're using enterprise software that they have licensed and usually they one of the terms of the license is that their inputs are not going to be used to train a model or to generate output for other people you know for other users of the platform so typically companies again ones that are sophisticated at least do view that as a potential problem and they want to make sure then that the tools they're using don't essentially don't allow for that they want a closed off system so that their inputs aren't being accessed or used to create outputs for other other people."

Driscoll explains that sophisticated companies using generative AI often opt for licensed enterprise software rather than public tools. He highlights that these licenses typically include terms preventing their inputs from being used for model training or generating output for other users. This demonstrates a proactive approach by advanced users to maintain control and privacy over their data.

Resources

External Resources

Articles & Papers

  • "variety story" - Mentioned as the source for the announcement of Disney's deal with OpenAI.
  • "wall street journal article" - Referenced for OpenAI's discussion of "cameos in Sora" and potential deals with companies like McDonald's.
  • "search engine land story" - Mentioned for reporting a screenshot that reportedly shows ads in AI mode.

People

  • Rob Driscoll - Partner at Davis Wright Tremaine, joined the show to discuss copyright concerns and potential trademark issues surrounding brands' use of generative AI tools.
  • Kamika McCoy - Senior marketing reporter at Digiday, co-host of the podcast.
  • Tim Peterson - Executive editor video and audio at Digiday Media, co-host of the podcast.
  • Dan Taylor - Google's VP of Ads, responded to a report about ads in Gemini.
  • Sam Altman - Mentioned in relation to his comments on ads in ChatGPT responses.

Organizations & Institutions

  • Disney - Mentioned in relation to its deal with OpenAI to make characters available for AI video creation and its cease and desist to Google.
  • OpenAI - Mentioned in relation to its deal with Disney and its generative AI tools.
  • Google - Mentioned in relation to its reported plan to roll out ads in its Gemini chatbot and a cease and desist from Disney.
  • Davis Wright Tremaine - Law firm where Rob Driscoll is a partner.
  • Midjourney - Mentioned as a company Disney filed a lawsuit against for copyright violation.
  • Marvel - Mentioned as a source of animated characters included in the Disney-OpenAI deal.
  • Pixar - Mentioned as a source of animated characters included in the Disney-OpenAI deal.
  • Star Wars - Mentioned as a source of animated characters included in the Disney-OpenAI deal.
  • Meta - Mentioned as an entity involved in copyright/fair use cases.
  • Anthropic - Mentioned as an entity involved in copyright/fair use cases.
  • Epic Games - Mentioned in relation to a previous deal with Disney for IP availability within Fortnite.
  • McDonald's - Mentioned as an example company that could potentially make a deal with OpenAI for its mascot.
  • The Wall Street Journal - Publication that reported on OpenAI's "code red" expiring.
  • The Information - Publication that reported on OpenAI's "code red" memo.
  • Adweek - Publication that reported Google was expected to roll out ads in Gemini.
  • X (formerly Twitter) - Platform where a screenshot reportedly showing ads in AI mode was posted.
  • Mattel - Mentioned as a company with IP that AI companies could potentially use.
  • Warner Brothers - Mentioned as a company with IP that AI companies could potentially use.
  • Universal - Mentioned as a company Disney filed a lawsuit against for copyright violation.
  • Pro Football Focus (PFF) - Mentioned as a data source for player grading in the "BAD" example.
  • New England Patriots - Mentioned as an example team for performance analysis in the "BAD" example.
  • NFL (National Football League) - Mentioned as the primary subject of sports discussion in the "BAD" example.
  • SAG-AFTRA - Mentioned in relation to its agreement concerning AI and its assistance to voice actors.

Websites & Online Resources

  • Digiday Podcast - The podcast where the discussion took place.
  • Gemini - Google's chatbot.
  • ChatGPT - OpenAI's chatbot.
  • Sora - OpenAI's video generation tool.
  • Chrome - Google's web browser.
  • Fortnite - Game where Disney IP is available through a deal with Epic Games.
  • Kingdom Hearts - Game that brings different characters together into a single universe.

Other Resources

  • Generative AI - The primary topic of discussion regarding copyright, trademark, and advertising.
  • Copyright - Legal concept discussed extensively in relation to generative AI.
  • Trademark - Legal concept discussed extensively in relation to generative AI.
  • Intellectual Property (IP) - Legal concept discussed in relation to generative AI.
  • Name, Image, Likeness (NIL) - Legal concept discussed in relation to AI use.
  • Fair Use - Legal doctrine discussed in relation to copyright.
  • Right of Publicity - Legal concept discussed in relation to AI use.
  • AI Model Training - A key area of litigation and discussion regarding generative AI.
  • AI-generated videos - Content created using generative AI tools.
  • AI-generated content - Content created using generative AI tools.
  • AI-generated ads - Advertisements created using generative AI tools.
  • AI-generated product placement - Product placement within AI-generated content.
  • AI-only feeds - Content feeds composed entirely of AI-generated material.
  • AI platforms - Platforms that utilize AI technology.
  • AI chatbot responses - The output generated by AI chatbots.
  • AI mode - A feature within Google Search.
  • AI reviews - Reviews generated by AI.
  • AI-generated video creation - The process of creating videos using AI.
  • AI-generated video generation - The process of creating videos using AI.
  • AI-generated videos starring - Videos featuring specific characters or entities created by AI.
  • AI-generated content usage - The application of content created by AI.
  • AI-generated content - Content created by AI.
  • AI-generated material - Material created by AI.
  • AI-generated output - The result of AI processing.
  • AI-generated replicas - Replications of individuals or works created by AI.
  • AI-generated videos - Videos created by AI.
  • AI-generated videos using their logo - Videos created by AI that incorporate a brand's logo.
  • AI-generated videos using their mascot - Videos created by AI that incorporate a brand's mascot.
  • AI-generated videos using their IP - Videos created by AI that incorporate a brand's intellectual property.
  • AI-generated videos using their image - Videos created by AI that incorporate an individual's image.
  • AI-generated videos using their likeness - Videos created by AI that incorporate an individual's likeness.
  • AI-generated videos using their voice - Videos created by AI that incorporate an individual's voice.
  • AI-generated videos using their characters - Videos created by AI that incorporate a brand's characters.
  • AI-generated videos using their brand identifiers - Videos created by AI that incorporate a brand's identifying elements.
  • AI-generated videos using their trademarks - Videos created by AI that incorporate a brand's trademarks.
  • AI-generated videos using their logos - Videos created by AI that incorporate a brand's logos.
  • AI-generated videos using their mascots - Videos created by AI that incorporate a brand's mascots.
  • AI-generated videos using their IP - Videos created by AI that incorporate a brand's intellectual property.
  • AI-generated videos using their image - Videos created by AI that incorporate an individual's image.
  • AI-generated videos using their likeness - Videos created by AI that incorporate an individual's likeness.
  • AI-generated videos using their voice - Videos created by AI that incorporate an individual's voice.
  • AI-generated videos using their characters - Videos created by AI that incorporate a brand's characters.
  • AI-generated videos using their brand identifiers - Videos created by AI that incorporate a brand's identifying elements.
  • AI-generated videos using their trademarks - Videos created by AI that incorporate a brand's trademarks.
  • AI-generated videos using their logos - Videos created by AI that incorporate a brand's logos.
  • AI-generated videos using their mascots - Videos created by AI that incorporate a brand's mascots.
  • AI-generated videos using their IP - Videos created by AI that incorporate a brand's intellectual property.
  • AI-generated videos using their image - Videos created by AI that incorporate an individual's image.
  • AI-generated videos using their likeness - Videos created by AI that incorporate an individual's likeness.
  • AI-generated videos using their voice - Videos created by AI that incorporate an individual's voice.
  • AI-generated videos using their characters - Videos created by AI that incorporate a brand's characters.
  • AI-generated videos using their brand identifiers - Videos created by AI that incorporate a brand's identifying elements.
  • AI-generated videos using their trademarks - Videos created by AI that incorporate a brand's trademarks.
  • AI-generated videos using their logos - Videos created by AI that incorporate a brand's logos.
  • AI-generated videos using their mascots - Videos created by AI that incorporate a brand's mascots.
  • AI-generated videos using their IP - Videos created by AI that incorporate a brand's intellectual property.
  • AI-generated videos using their image - Videos created by AI that incorporate an individual's image.
  • AI-generated videos using their likeness - Videos created by AI that incorporate an individual's likeness.
  • AI-generated videos using their voice - Videos created by AI that incorporate an individual's voice.
  • AI-generated videos using their characters - Videos created by AI that incorporate a brand's characters.
  • AI-generated videos using their brand identifiers - Videos created by AI that incorporate a brand's identifying elements.
  • AI-generated videos using their trademarks - Videos created by AI that incorporate a brand's trademarks.
  • AI-generated videos using their logos - Videos created by AI that incorporate a brand's logos.
  • AI-generated videos using their mascots - Videos created by AI that incorporate a brand's mascots.
  • AI-generated videos using their IP - Videos created by AI that incorporate a brand's intellectual property.
  • AI-generated videos using their image - Videos created by AI that incorporate an individual's image.
  • AI-generated videos using their likeness - Videos created by AI that incorporate an individual's likeness.
  • AI-generated videos using their voice - Videos created by AI that incorporate an individual's voice.
  • AI-generated videos using their characters - Videos created by AI that incorporate a brand's characters.
  • AI-generated videos using their brand identifiers - Videos created by AI that incorporate a brand's identifying elements.
  • AI-generated videos using their trademarks - Videos created by AI that incorporate a brand's trademarks.
  • AI-generated videos using their logos - Videos created by AI that incorporate a brand's logos.
  • AI-generated videos using their mascots - Videos created by AI that incorporate a brand's mascots.
  • AI-generated videos using their IP - Videos created by AI that incorporate a brand's intellectual property.
  • AI-generated videos using their image - Videos created by AI that incorporate an individual'

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