Generative AI is an exciting new frontier for the advertising industry – full of possibility, but also full of risk. As technology develops more quickly than the laws and regulations surrounding it, it can be difficult to know how to proceed. Do you dive in boldly and hope for the best? Do you hang back to watch and miss out on opportunities?
Steve Helland is chair of Fredrikson’s Technology & Data Group. He advises agencies, brands, and other clients on the thoughtful use of Artificial Intelligence, including tools such as ChatGPT, Bard, Bing, and MidJourney. Here are some of his suggestions for agencies, brands, and creative enterprises relating to their use of Generative AI tools:
Pick your Generative AI tool carefully. (Read the current legal terms.)
Generative AI tools are not all the same from a legal or risk perspective. You or your lawyer should read the current legal and user terms for issues such as: Will the AI provider indemnify your business if the “output” is alleged to infringe someone’s copyright? Does the AI provider “train” on your prompts and inputs or protect your confidential information?
The “raw” or “unmodified” output of AI tools is not copyrightable or patentable.
The U.S. Copyright Office has consistently taken the position that to be copyrightable, a creative “work” (such as text or an image) must have a human author, and that the unmodified or raw output of generative AI tools is not copyrightable. And if you don’t “own” the copyright, you can’t promise to assign ownership of AI-created deliverables to your clients, or to a buyer when you sell your business. AI-generated software code creates special risks and challenges.
Adopt an AI use policy that fits your business and use cases.
The appropriate AI Use Policy will reflect your industry, tolerance for risk, and demands or restrictions of your clients. One size does not fit all.
Keep humans involved.
AI tools consistently make errors and can generate false, offensive, illegal, and absurd outputs. Output from AI tools should be under the control and supervision of humans.
Stay curious and stay tuned.
The legal, risk, technical, and business landscape for AI tools is changing constantly. Generative AI provides some fantastic efficiencies and use cases, but also some substantial reputational, economic, and legal risks.
Questions? Contact Courtney Thompson, AdFed Legal Chair. Fredrikson is an annual sponsor of AdFed.