AI-Generated Material Isn’t Protected by Copyright — And Advertisers Shouldn’t Stress




AI-Generated Material Isn’t Protected by Copyright — And Advertisers Shouldn’t Stress

While human-created works entitle their creators to a variety of exclusive rights, AI-generated works are, as far as copyright is concerned, public domain.

Words by Chris Wlach

Photos courtesy Valentino Vergara / Midjourney

A glass Coca-Cola bottle floats above a glowing blue planet as countless stars sparkle in the background. 

The image looks like a Coke ad, if not exactly a modern one. But it differs in two key ways from nearly every other ad you’ve seen for the world’s most popular soft drink: It was created with artificial intelligence. And as a result, it isn’t protected by a critical legal safeguard that brands everywhere rely on — copyright.

Like every other industry, the marketing world has gone gaga over generative AI — that is, AI that can generate original text, art and other media. And who can blame them? With a few basic prompts, brands and their agencies can use ChatGPT to craft passable copy. Text-to-image tools like Midjourney and DALL-E 2 let users spin up high-res images in seconds, including everything from the otherworldly (behold, colossal magenta orchids!) to the oddly mundane, like a ketchup bottle floating in a swimming pool. Using these tools requires little artistic or technical skill. And for businesses, the price can’t be beat: Even the most expensive Midjourney subscription runs just $120 a month, cheaper than most client dinners. Apart from the occasional misstep — the nine-fingered hand or obsessive declaration of love — what’s for marketers not to love?

The marketer’s lawyer will tell you. In addition to some looming questions over the legality of AI models and their outputs, AI-generated material isn’t subject to copyright protection. At least according to the U.S. Copyright Office, which announced its policy in March 2023, following a monthslong review looking into the copyrightability of an AI-generated comic book. More recently, in August 2023, a District of Columbia federal judge upheld a Copyright Office decision that had similarly denied copyright protection to an AI-generated work.

Courts will likely issue further guidance on copyright and AI in the coming months. Congress may eventually do so, too. But for companies keen on building AI-generated content into their ads today, their lawyers should err on the safe side and treat the Copyright Office’s policy and recent court ruling as the law. What that means in practice: A brand using AI material in its ads needs to assume that others — even the brand’s competitors — could use that same material without infringing any copyrights. So while human-created works entitle their creators to a variety of exclusive rights, AI-generated works are, as far as copyright is concerned, public domain.

Creators who make their living selling and licensing their works — whether visual art, music or another medium — may dismiss tools whose output isn’t copyright-protected. But for advertisers eager to leverage AI in their creative work, it shouldn’t be a roadblock. Since long before the AI era, marketers and advertisers have drawn on shared sources of content. Stock photos and similar assets, ubiquitous in advertising, are typically licensed nonexclusively; an exclusive usage right or buyout usually costs multiples more. For other licensed material — say, a Beatles song — ownership or exclusive rights are simply unavailable. And in fact, these rights are often unnecessary. With few exceptions, the shelf life of an advertisement is just a fraction of a copyright’s duration. Temporary, nonexclusive usage may be all a marketer needs. 

The risk that one business exploits another’s Gen AI content, while nontrivial, probably isn’t significant either. Unless the original advertiser disclosed that its ad contained AI output, other businesses likely wouldn’t know it; they wouldn’t know if copyright protected the ad or not. That uncertainty, along with the chance that Congress or the courts land in a different place on AI works’ copyrightability, should steer smart businesses away from copying.

Less scrupulous and less sophisticated companies may also avoid copying AI material for the simple reason that they don’t have to. Copying may once have served as the cheap and easy, if unlawful, option for ginning up content — think of all the websites that simply parrot material from other sites. But with generative AI, cutting and pasting may be unnecessary: Tools like ChatGPT and Midjourney make it nearly as easy and cheap to create original works as to steal them.

Still, some brands will always attract copycats. So savvy companies are using other legal tools to protect their IP, even as they tiptoe into the riskier world of Gen AI. For its Create Real Magic campaign — where the Coke bottle image in this article’s opening line comes from — Coca-Cola let artists use an AI platform powered by GPT-4 and DALL-E to create original Coke ads. Shrewdly, Coke ensured that all outputs contained “branded elements — from the distinctive Coca‑Cola contour bottle and Spencerian script logo, to storied symbols from Coke’s advertising archives.” By including its trademarks in the AI art, Coke has hindered others from using the art for their own ends: Coke’s trademark rights don’t hinge on the copyrightability of the underlying art. 

Virgin Voyages employs a similar tactic in its much-publicized “Jen AI” campaign, which allows users to create custom AI-generated videos featuring a Jennifer Lopez avatar. Like Coke’s trademark rights, Lopez’s right of publicity — her right to control the commercial use of her image and identifying traits — exists independently of copyright. 

Brands can further safeguard their creative by adding human-made contributions to the AI-generated works — for instance, additional designs or artwork. The Copyright Office has indicated that substantive human contributions remain covered by copyright.

In all these cases, brands are effectively equipping their AI-generated ads with an anti-theft device: You can’t use the unprotected AI material without using material that is protected.

Gen AI raises as many legal and ethical questions as it does groundbreaking opportunities. But the inability to own AI outputs likely won’t deter advertisers from creatively using the new technology in their campaigns.

At least until the next development.

Chris Wlach serves as general counsel at Huge.

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