A legal expert shares how marketing executives can lock in copyright protections for AI-assisted work

• Using generative AI in marketing materials poses legal risks such as copyright infringement.
• Adding substantial human input to materials that use AI could keep marketers out of the danger zone.

More marketers are turning to generative AI to help create marketing content in an effort to boost productivity and keep up with client and consumer demands. But in a 2023 survey conducted for Deloitte, more than 75% of companies polled said they're concerned about legal risks related to intellectual property, such as copyright-infringement claims.

These are legitimate worries, said Peter Yu, a law and communications professor and the director of the Center for Law and Intellectual Property at Texas A&M University. Executives should be concerned with whether they can protect their creative output and whether using artificial intelligence could open them up to legal liability.

There are already lawsuits related to these issues, Yu said. For example, the Authors Guild and several high-profile authors, including George R.R. Martin, the writer of the "Game of Thrones" books, filed a lawsuit against OpenAI, the maker of ChatGPT, claiming copyright infringement.

While these cases revolve around the use of copyrighted work to train AI models, Yu said they could affect the entire landscape of AI-generated content — but it's not yet exactly clear how. He said the outcome of the cases would shed more light on how marketers could be affected when using AI to create content.

Yu spoke with Business Insider about these issues in more detail and offered some advice for marketers developing their craft in the age of AI.

The following has been edited for clarity and length.

What should marketing executives know about protecting their creative output when using AI?

The US Copyright Office has taken the view that any work autonomously generated by AI would not be protected under copyright law and has declined to register several works. The federal court has upheld the office's decision.

It's not that if you use AI, all of a sudden you'll lose copyright protection. The key to getting protection is to demonstrate that there's enough human creative input. At the moment, many marketers actually have a lot of human creative input, even though they're using AI tools.

So using AI on a work doesn't automatically prohibit someone from registering a claim to copyright?

If 10% of the work is created by AI, but then you bring in designers to do refinement, and the other 90% is actually done by humans, as long as you claim it properly, you'd still be able to get a copyright registration. But if you just go to an AI platform, type in a single prompt, and use that content, it may not be protectable.

Why should marketers be concerned about copyright infringement if they're using AI?

A lot of cases that have been filed under copyright infringement are directed toward AI developers. They're suing them for using copyrighted works as training data without authorization. But the way the copyright law is written, there's no reason why the copyright holders cannot sue other users.

Who is most likely to face a lawsuit due to infringement from AI use?

Right now, a lot of users are individuals who are playing with the tools and not using the content for commercial purposes. From a legal standpoint, it doesn't make sense to go after these individuals. But if companies are using the tools to make money, then there's no reason why the copyright holders cannot sue them.

The use of AI for commercial purposes could open you to legal liability or legal threats of copyright infringement. Even if a company can prove before a court that they're not infringing, having a threat would require them to use a lot of resources to defend themselves.

What's one piece of advice that you have for marketers as they use AI for content creation?

On the intellectual-property side, it's important to make sure to document the human creative input, especially if you're trying to apply for copyright. Even if you don't, it would still be useful to know what part is created by humans and what part is created by AI. It would be important to figure out early on as they integrate AI into their creative process.