- Using generative AI in your marketing materials poses legal risks, including: Copyright infringement.
- By adding significant human input to AI-powered materials, marketers can avoid falling into the danger zone.
- This article is “CXO AI Playbook“Business leaders speak openly about how they're testing and using AI.”
To boost productivity and meet customer and consumer demand, marketers are increasingly using generative AI to create marketing content. However, in a 2023 survey conducted for Deloitte, more than 75% of respondents said they were concerned about legal risks related to intellectual property, such as copyright infringement claims.
These are legitimate concerns, said Peter Yu, a professor of law and communications at Texas A&M University and director of the school's Center for Law and Intellectual Property. Business executives should be concerned about whether they can protect their creative output and whether their use of artificial intelligence could expose them to legal liability.
Yu said lawsuits related to these issues have already been filed: For example, the Writers Guild of America and several prominent authors, including Game of Thrones author George R.R. Martin, have filed a lawsuit against ChatGPT's developer, OpenAI, alleging copyright infringement.
While these lawsuits revolve around the use of copyrighted works to train AI models, Yu said they could have an impact on AI-generated content overall, though it's not yet clear how. He said the outcome of the lawsuits will shed more light on how marketers may be affected when using AI to create content.
Yu spoke to Business Insider about these issues in more detail and offered some advice for marketers honing their craft in the age of AI.
The following has been edited for clarity and length.
What do marketers need to know to protect their creative outcomes when using AI?
The U.S. Copyright Office has refused to register several works, stating that works generated autonomously by AI are not protected by copyright law. A federal court upheld the Copyright Office's decision.
Using AI doesn't suddenly mean you lose copyright protection. The key to gaining protection is to show that you had sufficient human creative input. Today, many marketers, even though they use AI tools, actually have a lot of human creative input.
So, does using AI in a work not automatically bar you from registering a copyright claim?
If 10% of your work is created by AI, then you bring in a designer to refine it, and the remaining 90% is actually done by a human, you can get a copyright registration as long as you claim it properly. However, if you just go to an AI platform, enter one prompt, and use that content, you probably won't be protected.
Why should marketers be concerned about piracy if they are using AI?
Many of the cases of copyright infringement are against AI developers. They are accused of using copyrighted works as training data without permission. However, there is nothing in the Copyright Act that prevents copyright holders from suing other users.
Who is most likely to face litigation due to infringements caused by the use of AI?
At the moment, many users are just individuals playing with the tools and not using the content commercially. From a legal perspective, it doesn't make sense to sue these individuals. But if companies are using the tools to make money, there's no reason why copyright holders can't sue them.
Using AI for commercial purposes can expose companies to liability and legal threats for copyright infringement. Even if a company can prove in court that it is not violating copyright, the threats can force it to spend significant resources to defend itself.
What's one piece of advice you'd like to give to marketers using AI for content creation?
On the intellectual property side, it's important to always document any human creative input, especially if you're looking to file for copyright. Even if you don't, it's useful to know which parts were created by humans and which parts were created by AI. Knowing this early on will be important when integrating AI into your creative process.
