Where Does AI Fit in Copyright Law?

Written by Erin Kacerovskis

In recent years, the question of where generative AI fits into intellectual property (IP) law has moved from academic debate to headline news. Right now, several high-profile court cases could decide how copyright applies to AI going forward. As a promotional products distributor, you’ve probably already wondered about the consequences of you or your clients using AI-generated art on branded products or in marketing.

Can You Copyright AI-Generated Works?

The short answer is no. If your logo, image, or text was completely generated by AI, you most likely can’t copyright it. The longer answer is that, in most places, this issue is being judged on a case-by-case basis. You have a much stronger chance of copyrighting a work created with a mix of human and AI input—for example, if you use an AI tool to edit a photograph you took, or if you use an AI image as the starting point for a design and change it or add to it. There is still much debate as to what constitutes significant human contribution, and the exact laws may vary based on what country or region you’re based in.

Can You Be Sued for Using AI-Generated Content?

This question is largely still up in the air. In the lawsuit The Walt Disney Company and Universal Pictures filed against AI image-generator Midjourney Inc., they argue Midjourney is responsible for ensuring Disney and Universal’s IP can’t be easily generated by users. Whereas Midjourney argues that users are responsible for adhering to their terms and conditions that forbid infringement on IP.

Many other AI copyright cases in the courts right now also argue that training AI models on works without permission of the copyright holder is a copyright violation in-and-of itself. Earlier this year, a judge in North Carolina countered that idea, ruling that it constituted fair use as long as the material wasn’t pirated. A judge in the UK gave a similar verdict in the case between stock image company Getty Images and Stability AI. However, part of the case was dropped due to jurisdiction limitations, so it’s still pending in the US. There are also multiple class action lawsuits brough by authors that are still ongoing, including one against OpenAI Inc., the company behind chatGPT.

How these cases play out could determine the future of copyright law as it applies to AI.

What Does This Mean for Promotional Products Professionals?

No matter how these court cases play out, it’s not going to make it safe to use an AI-generated Mickey Mouse in your client's next ad campaign. However, if these cases go in favor of the studios, authors, or stock image companies, it could call into question whether AI content can be used for commercial purposes, legally speaking. Although, that concern would only apply to models that were trained on copyrighted data obtained without the copyright holder’s consent, and there would likely still be gray area.

So, what happens if you take an AI image and use it for a marketing email, and then later you find out it included a close recreation of a smaller less recognizable IP? The jury’s still out, but we’ll be watching these cases closely!

How to Handle Copyright Concerns

We’re not lawyers, and this isn’t meant to be legal advice, but here’s a few common sense tips that will help you play it safe when it comes to AI and copyright concerns:

Do

Talk with your clients about copyright concerns and explain that generating an image may not automatically give them the rights to it if it includes copyrighted content.

Use generative AI tools that have been trained on licensed data like Adobe Firefly, which used Adobe’s own extensive stock library to train its model.

If you use AI to brainstorm important brand assets for you or your clients (logos, slogans, brand names), do a trademark database search to ensure they’re unique.

Don’t

Generate important branding assets like a company logo entirely with AI tools. You may not have copyright protection for your brand if a competitor's logo is too close for comfort.

Use client artwork that includes commonly recognizable IP like movie characters or sports logos without verifying they have the right to use them.

Use AI-generated content without human oversight. Reviewing AI content is critical not just because of copyright concerns but because AI tools can make mistakes.

Conclusion

There are a lot of question marks around what constitutes fair use when it comes to AI. Unfortunately, it may still be some time before copyright and trademark law comes to any kind of consensus—even then, the law still could vary by country or region. But these are important legal questions to consider, especially as the use of AI art becomes more prevalent in our industry. Staying informed will help you protect both you and your clients from potential legal issues.