AI (Artificial Intelligence) Makes Everything Easier in the Ad Industry. Right?
Remember way back at the end of 2022 when Microsoft-backed OpenAI’s new chatbot, ChatGPT, went public? We were amazed at the human-like capabilities and creativity of this very non-human resource. Want to hear a unique poem about flowers? No problem. Hankering for a philosophical discussion about the meaning of life? Let’s do it. Need help debugging or writing a piece of code? ChatGPT was there for you. The biggest thing we were concerned about was our kids finding out about it and never turning in their own homework ever again. While ChatGPT wasn’t the only (or necessarily the best) AI chatbot out there, Microsoft’s backing, and its affiliation with the search engine Bing, definitely brought this world out of the sci-fi genre and more into the mainstream than it had ever been before.
Notably, the advantages to the ad industry seemed clear right away. Advertisers could type in a few terms or pointed requests, and create fancy artwork, “original” copy and solutions to problems.
We quickly saw that AI may even be able to fully generate real ads. In January 2023, Hardee’s asked the AI tool DALL-E to imagine Hardee’s SUPER STAR Burger, resulting in 10,000 crazy burger images and a big social campaign. The thrust of the campaign was essentially, “don’t worry, AI still can’t create our burger,” but it certainly got marketers thinking about faster, cheaper solutions to ad content creation. We also saw Ryan Reynolds ask ChatGPT to write the copy for a social spot for MintMobile. While it possibly wasn’t the most creative ad, it got the point across.
You couldn’t blame advertisers for considering the potential cost savings if AI could effectively do the jobs of artists and copywriters.
However, months into this “post-ChatGPT” world, some real concerns have started to emerge. The NY Times’ Kevin Roose’s unsettling experience with ChatGPT on Valentine’s Day night 2023 freaked everyone out. The chatbot’s (or “Sydney,” as it wanted to be called) insistent love, professed desire to hack into nuclear codes, and potential to sway vulnerable folks to perform bad acts, had Microsoft admitting there’s work to be done as it irons out the kinks.
And before hard-working creatives fall into a full-out panic about their job security, there are still a number of obstacles on the legal side that brands and agencies will need to work through:
Who owns the output of AI machines?
An agency may input its own original thoughts and directions into an AI tool, but who owns what comes out of that? Unfortunately, the law is not yet clear on this issue. Who might own the output? The agency? (because it started the process); The chatbot? (because it created the ultimate work product); or maybe even the owner(s) of other content used by the chatbot to generate the ultimate product. So, if you need to own your resulting ad content, using AI may complicate matters.
Further, if you use AI to create designs for your ad, it’s still unclear at this point whether you can protect those designs via copyright law. Artwork need not necessarily have copyright protection to be usable in an ad, but being able to protect work via copyright affords an owner additional rights and protections (e.g., ability to sue in federal court, more easily obtain an injunction, seek statutory damages/attorneys’ fees, etc.). In a case ongoing since 2019, the United States Copyright Office refused to register a copyright in an AI-generated piece of artwork, explaining that the Copyright Act’s requirement for an “original work of authorship” actually also requires “human authorship” to support a copyright claim. And art produced via AI did not qualify. The artist using AI is challenging the decision. However, in March 2023, the Copyright Office issued a statement, clarifying that works that contain AI may indeed be eligible for copyright protection, if the work maintains some human authorship (and then, copyright will only protect those elements that are human-authored). It’s complicated!
Can the AI machines freely take from anyone/anywhere on the “input” side?
What about on the other end of AI? What if you don’t want all these AI tools using your hard-earned work to create new content? If you, as an ad agency, brand or creative have released your marketing content to the internet, even if you could technically block AI machines from using your content as training data, can you legally stop it? There are at least 3 ongoing cases tackling this issue. The cases deal with the rights of AI machines to (a) ingest existing, copyrighted, source code to generate code for others (Doe v. GitHub, N.D. Cal. Nov 10, 2022); (b) use existing art to create art “in the style of” the original art (Andersen v. Stability AI et al, N.D. Cal. Jan. 13, 2023); and (c) take stock images without licenses to feed their reservoir of imagery (Getty v. Stable Diffusion, Jan. 2023, UK).
Advertisers may be struggling to come to terms with the fact that if they will benefit on the output side of AI, they may have to live with the loss of rights on the input side. Or, will the courts severely limit the AI machines’ gathering capabilities before they even get going, making the tools less desirable? Courts will struggle with what is the best policy outcome for the developing technology.
Will anyone protect AI-using advertisers from claims?
And finally, what happens if you use AI for your ad, and then a third party comes along and claims you infringed their rights? That fantastic AI machine created the ad, so it will stand behind it, right? Of course, the answer is “not so fast.”
What kind of claims are we talking about? While they really could run the gamut, it’s possible that your AI machine could generate content that references celebrities, incorporates others’ trademarks, or even includes copy that is substantially similar to an existing campaign. When you use that content, you run the risk of right of publicity, trademark and copyright claims from the celebs, trademark owners, and originators of the copy.
If you turn to your AI provider and ask it to handle those claims, those asks are likely to fall on deaf ears. Their terms do not promise unlimited commercial use. They don’t promise all output has been cleared for ad campaigns. And they certainly don’t promise to indemnify you if you get a claim. Luckily for us ad lawyers, AI machines do not submit themselves to legal review before releasing the content.
As we all know, advertising copy is afforded the least protection under the First Amendment, and what you may be able to get away with for pure entertainment or news purposes won’t fly when you use it to promote your business and to make $. At this stage, these AI machines may be great at producing usable entertainment/news content, but when it comes to advertising, we reach an entirely different risk level. For advertisers, it really is “use at your own risk.”
This is all not to say AI is unusable in the ad industry today. There may be some unique, lower-risk tasks for which AI may be ideal. For example, brands and agencies have seen a lot of success with AI-assisted search engine optimization (SEO) and audience targeting.
However, while the day may come that AI replaces us all, at least in the ad industry, we’ve still got some hurdles to overcome before that becomes a reality.
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For legal questions about AI and the ad industry (or any advertising/media legal needs), reach out to us at S2 Advertising Law - michael@lawofadvertising.com
