The intersection of artificial
intelligence (AI) and creativity has
opened up a new frontier in the
world of marketing, with companies
increasingly exploring the use of
AI-generated art in their campaigns.
However, the recent ruling in the
case of [*Théâtre D’opéra Spatial* by
the U.S.](https://www.copyright.gov/rulings-filings/review-board/docs/Theatre-Dopera-Spatial.pdf) Copyright Office (USCO)
has introduced a new layer of
complexity and uncertainty.
The decision reaffirmed that
AI-generated works are ineligible
for copyright protection (at least
for now). This POV explores the
implications of this landmark
decision for companies considering
using AI-generated art in their
marketing strategies.

Let’s delve into the intricacies of the
ruling, its grounding in the principle
of human authorship, and the
broader implications for various
forms of creative output beyond
visual art.

By examining the potential risks
that companies may face, from
the lack of copyright protection
for AI-generated art to potential
infringement of other rights, if the AI
has been trained on copyrighted
works, we can explore the
alternative forms of intellectual
property protection that companies
might consider and the ethical and
public perception considerations
that come into play when using
AI-generated art.

In an era where AI is becoming an
integral part of creative processes,
we aim to clarify the evolving
landscape and offer guidance for
companies at the forefront of this
technological revolution.

Image 1

#### SUMMARY OF THE DECISION

The USCO Review Board has reaffirmed its  stance that __works generated by artificial  intelligence cannot be copyrighted without  sufficient work or authorship by humans.__ The decision was made in response to Jason  M. Allen’s second request for reconsideration  of the Review Board’s refusal to register a two dimensional artwork titled Théâtre D’opéra  Spatial, which he created in part using an AI  system. The Review Board maintained that the  work contained __more than a de minimis amount  of AI-generated content, which should have  been disclaimed__ in Mr. Allen’s application for  registration. As Mr. Allen was unwilling to disclaim  the AI-generated material, the Review Board  upheld the denial of registration. 

The Review Board’s decision is rooted in the  principle that __human authorship and creation  is the bedrock of copyright protection.__ The  decision leaves open the possibility for further  analysis by the USCO on a case-by-case  basis, and there are expected to be further  developments in this area of law.


#### WHAT PARTS OF THE WORK WERE ELIGIBLE FOR COPYRIGHT?

According to the USCO’s decision, while the  work as a whole could not be copyrighted  based on the facts of this case, it did try  to clarify that certain human-authored  modifications to the AI-generated material  may potentially be protected by copyright.  This would be the circumstance if the human  author’s contributions involve sufficient  creative choices and originality. 

*__Does this ruling apply only  to images or more broadly? __*

The USCO’s decision specifically addressed  a case involving a two-dimensional artwork.  However, the principles outlined in the  decision—particularly the requirement of   human authorship for copyright protection— may apply more broadly to all forms of  creative expression, including written works.  They could also help inform how businesses  wishing to protect copyright should proceed. 

The USCO has stated that __“the Office will  refuse to register a [copyright] claim if it  determines that a human being did not  create the work.”__ This stance will likely  extend to written works generated by AI. 

However, as with visual art, human-authored  modifications to AI-generated text may be  copyrightable if they involve sufficient creative  choices and originality. The specifics of  each case would be significant, and the  USCO would need to consider whether the  human-authored elements can sustain a  claim for copyright.


Image 2

#### WHAT OTHER FORMS OF PROTECTION  ARE AVAILABLE TO BRANDS? 

While the great majority of AI-generated works may not currently be eligible for copyright  protection in the U.S., there are several other forms of intellectual property (IP) protection that  companies should consider (with the help of counsel): 

__Trademarks:__  In some cases, artwork used in conjunction with the brand could be eligible for trademark protection. This would offer  protection against other entities using a  similar mark in a way that could confuse  consumers. Additionally, any logos, brand  names, and other elements of marketing  campaigns that are already trademarks  would continue to be protected—meaning  that while some AI-generated elements of a  marketing campaign may not be protected,  the overall advertising units (consisting of art,  logos, and copy together) are protected in the  configuration used. 

__Trade Secrets:__ The prompts, algorithms, data sets, and techniques used to create AI-generated art could potentially be  protected as trade secrets. This would  require the company to take steps to ensure  the secrecy of these elements, such as  implementing strict access controls and  confidentiality agreements. Keeping prompts  as trade secrets makes it impractical for the  AI-generated artwork to be reused by others. 

__Patents:__ Companies may be able  to patent the unique methods  
or systems used to generate AI-created art. However, patent law also  requires human inventorship, and obtaining  a patent can be long and complex, and  generally requires the assistance of  specialized legal counsel.


#### HOW CAN MARKETERS USE AI-GENERATED CONTENT? 

*__Does a lack of copyright  mean that AI-generated  content is useless for AI  marketing? __*

Not at all. __AI-generated content can be used  as long as risks are properly managed.__

Firstly, the brand has the right to use the  AI-generated work explicitly because it is not  copyrighted. No license fee or royalties need  to be paid. The risk is that anyone else could  use the AI-generated work you create too.  

Generally speaking, all ads will have the brand  name and logo placed “on top” of them at  some location. The brand name and logo are  likely trademarks and protected separately  from copyright. No one else has the right  to use the ad in its entirety other than the  trademark owner.  
Brands will need to weigh the residual risk of  the AI-generated content against its utility to  decide about the elements “underneath” the  logo and brand name.  

There is some nuance around which AI  uses matter. It helps to consider this  using examples.


#### EXAMPLE 1: GENERATIVE-AI FILL 

Consider a brand that ran a photoshoot in a desert. The photos from that shoot are  copyrighted, and the copyrights are held by the brand. The photo, as seen in Figure 1, has  too many footprints. An artist uses an AI “generative fill” algorithm to smooth out the sand  and limit the number of footprints. 


Fig 1

__What is the utility?__ A cleaner image was made with minimal effort. 

What is the risk of reuse? The AI-generated sand and footprints cannot be copyrighted. In  principle, the footprints could be copied and reused by another party. In practice, it would be  virtually impossible to determine which parts of the picture are reusable without access to the  details held within the AI tool. Even if these could be disentangled, is there any actual damage  done to the brand by the reproduction of the footprints? 

Likely not. In this case, this use may be safe for the brand under specific circumstance. 


#### EXAMPLE 2: GENERATIVE-AI EXPANSION

In this example, the brand conducted a photoshoot in the mountains (Figure 2). The brand owns  the copyright of the photos. After the shoot, there was a desire for a wider angle shot than was  captured. 

An artist can use generative AI to expand the image. In this use, the AI fills in the area beyond the  edge of the image using a probabilistically likely scene. It blends perfectly with the actual photo. 


Fig 2

__What is the utility?__ A wide-angle version of the image was made available with minimal effort.  Even reshooting on location would not achieve this, as changes in lighting, seasons, foliage, etc.,  would never match perfectly. 

What is the risk of reuse? The AI-generated edges of the image cannot be copyrighted. They  could be re-used by someone else. The core photo is still copyrighted, and trademark protection  likely applies to any logo and brand name used. This comes down to a risk judgment as to the  value of the edges of the image.  

In this case, we would argue that the use of AI-generated content is of very low risk to the brand  and is very likely acceptable.


#### EXAMPLE 3: GENERATIVE-AI FOUNDATION 

Figure 3 shows the work at the heart of this copyright decision. The AI called “Midjourney” was  used to generate the foundational part of the art on the left. A human artist then modified it to  create the final work on the right. 

As we have seen, only the human-applied edits can be copyrighted. The underlying  AI-generated image cannot be copyrighted. 


Fig 3 

__What is the utility?__ A beautiful image was created and customized to the needs of the brand. 

What is the risk of reuse? Here, there is certainly some risk of reuse. In this instance, the  AI-generated content is fundamental to the overall piece. Compare it to the use of stock  photography with a non-exclusive license. The same background image might appear in  other places and be used by other companies. 

The AI-generated content is effectively a zero-cost stock photo, and for campaigns not deeply  tied to the underlying image, this may be an acceptable compromise for the brand. Conversely,  if the image is the “hero” of the brand meant to stick in customers’ minds, this use is probably  unacceptable. It is an instance where judgment matters. 


Image 3

#### RECOMMENDATIONS 

At Klick Health, we believe that AI-generated content is too big of an opportunity for brands  to pass up. We recommend the creation and communication of a policy defining when  AI-generated content is acceptable and when it is not. 

Specifically, we recommend: 

1. Companies should seek advice from legal
counsel to register and protect their logos
and brand names as trademarks

2. Marketers should also consult with
their legal teams to create a policy on
AI-generated content

3. AI policy should be communicated to
agencies and any other content authors
working on behalf of the company

4. Content authors should be contractually  required to disclose if any substantive parts  of their work are AI-generated so that risk  can be appropriately managed 

5. Companies should weigh the (low) risks
currently associated with the use of AI
fill and AI expansion and consider the
practical impact

6. Companies should define when the use  of AI output as the “foundation” of an  ad is acceptable. Comparing these use  cases with the use of non-exclusive stock  photography is helpful in drawing the lines 

7. Companies should protect their AI prompts  as trade secrets by including trade secret  best practices within their AI policy 

This policy can and should be extended for uses other than visual art, such as the written word. 


#### ADDENDUM NOVEMBER 1, 2023: AI TRAINING COPYRIGHT LAWSUITS

There is a second, unrelated set of copyright litigation underway around image-generating AIs. These cases dispute whether or not specific AI platforms violated the copyrights of authors and artists when creating their systems. This does not have to do with the use of the images
generated by the system but with how the system itself was created.
Multiple cases are proceeding in the U.S. and other countries. A [recent ruling](https://copyrightlately.com/wp-content/uploads/2023/10/Andersen-v.-Stability-AI-Order-on-Motion-to-Dismiss.pdf#page=&zoom=auto&pagemode=none) in the U.S. set a high bar for these plaintiffs to meet.

1. For now, use only AI systems that are not  embroiled in these issues for anything that  you publish. There are AI models out there  that have been created using licensed  material only, and they pose a low risk of  copyright infringement in training 

2. Keep an eye on these cases. This is a  fast-evolving area—and a few of the most  capable tools are in the middle of it  

---

*We welcome your questions and feedback. Please contact: __Michael Chambers__ SVP, Opportunity Creation at mchambers@klick.com*


The ruling by the U.S. Copyright Office on using AI to create the work “Théâtre D’opéra Spatial” marks a pivotal shift in copyright law that underscores the urgency for businesses to navigate the evolving intricacies of AI-generated content. Our POV offers a comprehensive exploration of the implications of this landmark decision, providing critical insights for marketers and creatives leveraging AI in their strategies. This piece emphasizes   the need for a nuanced understanding of legal considerations, while serving as a roadmap  for harnessing AI’s potential in marketing, ensuring that creativity flourishes within the bounds of legal compliance.

We dive into the challenges and opportunities of AI-generated art, emphasizing the need for a nuanced understanding of legal considerations. We highlight how organizations can effectively leverage these innovative AI creations—while adhering to copyright laws and ethical guidelines.

Our perspective is invaluable, guiding brands through the complex interplay of technology and legal frameworks. This POV serves as a roadmap for harnessing AI’s potential in marketing, ensuring that creativity flourishes within the bounds of legal compliance.




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