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AI Platforms: Understanding and Navigating Legal Risks in Creating Advertising and Entertainment

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Experts on AI discussed how to identify potential legal issues, develop strategies to mitigate risk, and gain insight into the latest developments in the legal landscape.

Key Takeaways

Virtually every major technology company is significantly involved in investment and/or partnerships with AI developments.

But how does it work? It's a type of machine learning that uses models to learn from pre-existing content. There are a lot of data sets available publicly accessible on the internet. Generative AI tools can be used for brainstorming for campaign strategy, such as developing storyboards and mock-ups.

However, these tools won't "take over" jobs; in fact, companies will need more people to operate these AI tools effectively and at a commensurate level.

The differentiation between human-created objects and AI is crucial in terms of copyright, and how and who and what becomes copyright material. Human-created pieces can be copyrighted, whereas AI-generated pieces, whether copy or visual, cannot. For example, in the "OpenAI Fair Use White Paper," the document states:

"This submission makes three points: I. Under current law, training AI systems constitutes fair use. II. Policy considerations underlying fair use doctrine support the finding that training AI systems constitute fair use. III. Legal uncertainty on the copyright implications of training AI systems imposes substantial costs on AI developers and so should be authoritatively resolved."

Further, in "Copyright Office AI Guidance," the article explained the difference between "human-authored" and AI: "More recently, the Office reviewed a registration for a work containing human-authored elements combined with AI-generated images. In February 2023, the Office concluded that a graphic novel comprised of human-authored text combined with images generated by the AI service Midjourney constituted a copyrightable work, but that the individual images themselves could not be protected by copyright."

The report also stated, "If a work's traditional elements of authorship were produced by a machine, the work lacks human authorship and the Office will not register it. For example, when an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ''traditional elements of authorship'' are determined and executed by the technology—not the human user. Based on the Office's understanding of the generative AI technologies currently available, users do not exercise ultimate creative control over how such systems interpret prompts and generate material. Instead, these prompts function more like instructions to a commissioned artist."

Action Steps

Legally, when you're using a tool, there's the rep and warranty to the tool itself, that the tool has been trained ethically on licensed content, ethically sourced content, and that generally the models that it uses to output are not infringingly third-party intellectual property rights.

However, the speakers pointed out that it's still early days. None of the platforms, they stated, are fully transparent about the content they use and acquire. Many companies, such as Shutterstock, pay contributors which helps avoid copyright claims.

Of course, as AI tools are still new, there are mishaps. For instance, Getty recently filed a lawsuit against Stability AI as Getty is alleging that Stability AI copied millions of its photos without a license and use them to train its AI model stable diffusion to generate more accurate depictions based on user prompts. Getty also claims the company used watermarked images, and Getty found some of the outputs actually bore those same watermarks.

What does this mean for marketers? Tread carefully. This doesn't mean a team can't use generative AI tools, but it is important both to know risks and to try to gain as much knowledge as possible about the tools being used and how they were created and/or trained, as well as warranties and insurance. Ultimately, it's important to evaluation and mitigate risk; is it a tool used internally to save money? Who is it best serving, the client or agency? Moreover, determine who bears risk? Does the company or the agency?

CLE Materials


"AI Platforms: Understanding and Navigating Legal Risks in Creating Advertising and Entertainment." Ryan Martin, associate at Loeb & Loeb LLP; Maura Cardani, associate general counsel of commercial legal and business affairs at Americas Wunderman Thompson; William Clark, assistant general counsel of licensing at Shutterstock, Inc. 2023 ANA Law 1-Day Conference, 4/26/23.

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