In the past year, the fashion and retail industry has been busy experimenting with generative AI (“GenAI”) to help design and create marketing campaigns and personalized advertisements.¹ Given GenAI’s enormous potential to unlock time and money savings, this trend will likely continue and become ubiquitous in fashion.  However, before opting to use GenAI for any and all tasks, brands should give careful consideration of the impact the use of GenAI can have on intellectual property protections, such as copyright. 

Specifically, the Copyright Act affords protection to “original works of authorship,” and this has long been interpreted to mean human authorship.² On the tail of GenAI tools entering the marketplace, the Copyright Office issued guidance for registering works containing materials generated by artificial intelligence (“AI”).³  Specifically, the Copyright Office reiterated that copyright can protect “only material that is the product of human creativity.”  For works containing AI-generated material, only the human-authored aspects of the work can receive copyright protection and only if it is sufficiently creative.  Yet whether a work is copyright protectable is “necessarily a case-by-case inquiry” that depends on “how the AI tool operates and how it was used to create the final work.”

Applying that “case-by-case” inquiry, the Copyright Office refused to register an AI-generated image titled “Théâtre D’opéra Spatial,” winner of the 2022 Colorado State Fair’s annual fine art competition. 

Théâtre D’opéra Spatial

To create the visually stunning work, the artist input at least 624 text prompts to Midjourney –  an image GenAI program – to arrive at the initial version of the image.  He then used Adobe Photoshop to remove flaws and create new visual content and upscaled the image using Gigapixel AI.  Nonetheless, the Copyright Office held that the artist’s text prompts only “influence[d]” what Midjourney generated, and that the traditional elements of authorship was determined and executed by the program. 

What does this then mean for the use of GenAI in creating marketing campaigns? Based on recent Copyright Office decisions, advertising campaigns created entirely through the use of GenAI tools – even when the result of significant human input and selection – may not be copyright protectable. This is because the Copyright Office has indicated that  “guid[ing] the structure and content” of images is not sufficient, as it is the GenAI tool “that originate[s] the traditional elements of authorship” in the resulting generated images.⁴

This then begs the question, can GenAI tools be used at all in the creation of marketing content and still result in a protectible end product? Based on current guidance, it will depend on when and the way GenAI tools are being used in the creative process.

1. Brainstorming Marketing Ideas – Brands are using GenAI tools to assist in the brainstorming of ideas and concepts for new marketing campaigns; in other words, exercising that wild creative mind that Ms. Parker identified. If thereafter the design and development of the marketing is done by humans,⁵ then the resulting work is likely protectable.⁶ For example, if a brand uses a GenAI tool to devise an intermediate image, and thereafter (a human) makes “substantive” edits to that image, the result may be deemed copyrightable.⁷ However, the protection would be limited, as copyright would not protect against third party use of the intermediate image. 

2. Drafting Product Descriptions and Ad Copy – Brands are using GenAI tools to assist in drafting product descriptions and ad copy. These descriptions may not be protectible. The Copyright Office looks at whether text is “written entirely by [human authors] without the help of any other source or tool, including any generative AI program.”⁸ Where GenAI is used to help in writing the text then, the Copyright Office appears less inclined to find that text registrable.  But since product descriptions are frequently routine and may not be works a brand is interested in protecting, the productivity gains obtained from GenAI could be determined to outweigh the loss of copyright protection. 

3. Creating Different Versions of a Marketing Campaign – Brands are also using GenAI to create multiple versions of an advertising campaign, so as to target different audiences or create differentiation between media platforms. This provides brands with more diversified options and formats of a single ad. Although the original advertising may be protectible depending on the nature and scope of use of GenAI tools in its creation, it is not clear whether derivative versions of that campaign created with GenAI tools are protectible. Based on current guidance, it would seem that the Copyright Office would look closely at the input compared to the output, and nature of the tool used to assess the extent of human authorship in creating the derivative works. 

In short, the use of GenAI tools at certain stages and for certain tasks in creative process may strike the balance of obtaining the benefit and efficiencies afforded by GenAI tools while not foreclosing copyright protection over the final result. But regardless, it is clear that brands are recognizing the value proposition associated with the use of GenAI. As the legal landscape of IP protection plays catch-up and orients itself, brands will have to expect that the outputs of their use of GenAI could be copied without certainty on the legal recourse being available to them.

Authored by Helen Trac and Rebecca Horton.

References

1 Vogue Business,  How fashion is using generative Al in-house, MAGHAN MCDOWELL, October 31, 2023.

2 17 U.S.C. 102(a); Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 (1884).

3 Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 16190 FEDERAL REGISTER, VOL. 88, NO. 51, 37 CFR PART 202, MARCH 16, 2023, https://www.copyright.gov/ai/ai_policy_guidance.pdf

4 2023.02.21 Zarya of the Dawn Letter (thomsonreuters.com) at p. 8 (citations omitted).

5 This includes with the assistance of common editing tools that are “controlled and guided” by human authors.

6 2023.02.21 Zarya of the Dawn Letter (thomsonreuters.com) at p. 9 (“when artists use editing or other assistive tools, they select what visual material to modify, choose which tools to use and what changes to make, and take specific steps to control the final image such that it amounts to the artist’s own original mental conception, to which they gave visible form”) (internal citations omitted).

7 2023.02.21 Zarya of the Dawn Letter (thomsonreuters.com) at p. 11-12.

8 2023.02.21 Zarya of the Dawn Letter (thomsonreuters.com)