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Do brands own the copyright on AI-generated ads?


By Chris Sutcliffe, Senior reporter

January 11, 2023 | 7 min read

Marketers are, predictably, only too keen to jump on the artificial intelligence trend, but what are the legal ramifications for brands when it comes to work created solely by machines?

Martini's AI-generated assets were created by Midjourney

Martini's AI-generated campaign used Midjourney to create visuals from human-chosen keywords / Unknown

Martini is the latest brand to dip a toe into the world of AI-generated advertising, launching a campaign that uses the Midjourney tool to remix its existing stock of promotional imagery to create entirely new artworks.

The idea, according to Avril Nunez, the brand’s global creative development director, was to “tell Martini’s story through a platform and technique that felt new and forward-thinking“.

She says: “As a heritage brand, we’re keen to look to the future as much as the past as we continue to evolve. Time will tell how AI technology develops over the next few years, but for us it made sense to try something that felt fresh, new and exciting.”

Like most AI-generation art tools, Midjourney required Martini to enter keywords and terms that could then be ‘blended’ to create the final visuals. Nunez tells The Drum that, in its case, those keywords included the drink’s ingredients, colors and taste.

The campaign speaks to the burgeoning use of open-source tools to create AI-generated art. For the marketing industry, however, there is concern over who owns the copyright to such creative works. A recent ruling in the US set precedent, with the Copyright Office stating it “will not knowingly grant registration to a work that was claimed to have been created solely by machine with artificial intelligence”.

Sophie Goossens, who is a partner at law firm Reed Smith’s entertainment and media industry group, tells us: “The general consensus in the legal world seems to be that where AI is a mere tool in the hands of a human, the output may be protectable. Where the AI creates without or with very limited human guidance or intervention, however, the output is unlikely to be protectable. There is no standard yet on ‘how much’ human intervention is needed for the output to be deemed protectable and, indeed, this will likely be a matter for the courts to assess.”

She says that in the UK, that threshold is likely to be fairly low as the law has long considered that a computer-generated work may be ‘claimed’ by the human “by whom the arrangements necessary for the creation of the work are undertaken,” but only for 50 years from the date it was made.

At the same time, the widespread availability of AI tools such as Dall-E, Stable Diffusion and their derivatives mean that more AI-generated art is being created than ever before. And the conflation of copyright issues and increased availability isn’t stopping some from using it for marketing purposes.

Paris-based advertising agency Brainsonic has used Dall-E and Midjourney to play around with Becherelle, the reference book for the French language, demonstrating the versatility of the tool. Its general manager of Brainsonic Mathieu Crucq explains: “Generative AIs are now used at several levels within the agency. We have made them easily accessible to the whole agency. Midjourney on the Brainsonic Discord and Stable Diffusion on a dedicated machine where we can code and create AI models.”

He says that the tools are used “to create storyboards quickly, to create mood boards, seek inspiration, stage ultra-realistic models, test lighting“.

“This saves us major amounts of time in graphic production, whether for concepts or digital art direction. We also use OpenChatGPT to boost editorial efficiency on certain subjects.”

The role of the human

While Brainsonic is using those AI tools in the creation of the art there is still notably human agency involved in the process. Where copyright issues come into play is when there is no demonstrable human interaction – a tricky gray area given that a human is required to at least provide the prompts for the AI to begin with.

Hovhannes Avoyan, who founded the AI-powered creative platform Picsart and recently launched SketchAI, a tool that allows users to turn scribblings into full-fledged works of art, compares what’s happening in AI to the advent of the digital camera and then the smartphone, which made it possible for almost anyone to take photos. “Generative AI will empower more creatives and marketers everywhere to create higher quality material.“

Avoyan warns, however, that creators “must still adhere to the same copyright restrictions they did before these tools were available and there are infinite applications of generative AI that are outside of regulatory concern.”

He too argues that the benefit of AI for marketing creatives is in assisting with the means of creation, rather than skipping directly to the ends. Research conducted by the company found that 36% of respondents in the marketing space are already using generative AI, while 49.7% say that they are interested in using it.

For Reed Smith’s Goossens, the view that the current transition to AI-generated art is analogous to the transition from traditional mediums – paint or early photography instance – to digital photography adopts the position that AI can be ‘just a better tool’. “However, it is becoming increasingly difficult to always describe AI as just another ‘tool’, in particular where AI systems are programmed to generate an output autonomously, on the basis of a few limited prompts,” she says.

For brands, it is now beyond doubt that AI can create artwork worthy of marketing. But as long as AI-generated art occupies a gray area when it comes to ownership, the challenge is how to best use it in tandem with human creatives.

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