Can I Use AI-Generated Content in Marketing Material?

Dear Will & AiME,

We recently started using AI-generated content for our marketing campaigns, but someone mentioned that we might not actually own the rights to this material. Is that true? How can we ensure our IP is protected?

— Curious Marketer in Miami

Dear Curious Marketer in Miami,

U.S. law currently provides that wholly AI-generated content typically doesn’t qualify for copyright protection because it is not created by a human. U.S. copyright law (and the laws of many other countries) requires a "human author" for a work to be copyrightable. In most cases, AI-generated material isn’t automatically protected by copyright, and you, as the prompt engineer, don’t own the rights unless specific conditions are met.

There are ways, however, to inject human authorship into your work to make at least the human-portion protectable. Also, you can use other IP protection when it comes to protecting the work.

Here are some steps to help ensure your marketing materials and intellectual property are protected:

1. Understand Your AI Tool’s Terms of Service

   Some AI platforms retain rights to the content their tools generate, while others assign rights to the user. Make sure you’re using a platform that explicitly states you have ownership of the output.

2. Add a Human Touch

   Incorporate human creativity into the AI-generated output. For example, use the AI-generated output as inspiration and then create your own work based on your inspiration. Another way is to heavily edit or customize the AI-generated material, which may give you copyright protection.

3. Trademark Your Branding

   If your AI-generated materials include elements that are integral to your brand, consider protecting them trademark rights. While AI-generated content itself may not be copyrightable, content that is AI-generated can be protected by trademarks if it identifies the source of your products or services. Be careful to make sure the AI content, however, does not infringe on someone else’s brand. AI-generated content can sometimes use third-party branding.

4. Monitor Competitors

   Keep an eye on your market for others using similar AI tools. If you notice content that’s too close for comfort to yours, you may need to dig deeper into whether your intellectual property has been improperly used to generate that content.

5. Consider Enforcement Strategies

   U.S. law requires that you have a copyright registration to enforce against a third party who is infringing on your copyright. If your AI-generated output cannot be protected by copyright, it cannot be registered. In turn, you cannot enforce against competitors using your works. Make sure to incorporate elements into your works that are protectable and that can be registered with the U.S. Copyright Office.

As AI continues to evolve, these legal gray areas will likely become more defined. For now, taking proactive steps is your best bet. Good luck with your campaigns - AI is a powerful ally if you use it wisely!

- Will & AiME

Three Takeaways:

• AI-generated content often lacks automatic copyright protection because current laws typically require a human author.

• Review the terms of service for AI tools to understand who owns the rights to the generated content.

• Incorporate significant human creativity into AI-generated material to increase its eligibility for copyright protection.

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