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How does copyright work with AI generated ads

Have you seen the latest Martini ad? The campaign utilises the Midjourney tool to remix its existing stock of promotional imagery to create entirely new artworks. According to creative director Avril Nuñez, the brand’s global creative development director was to “tell Martini’s story through a platform and technique that felt new and forward-thinking.

[…] 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.”

If you’re unaware of how the AI creation process works, Martini would be required to enter keywords and terms that could then be ‘blended’ to create the final visuals that fit within the vision such as keywords that centre around the drink’s ingredients, colours, tones and taste.

With this being a new form of creation, it has raised concerns over copyright among the marketing industry. 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”.

Surely AI is regarded as a handy tool but the direction and creative universe must be invented by and stemmed in the mind of a human? In an interview with The Drum, Sophie Goossens, who is a partner at law firm Reed Smith’s entertainment and media industry group, supports our thinking. “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.”

Goossens also said 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.

Furthermore, the widespread availability of AI tools such as Dall-E, Stable Diffusion and their derivatives means that the conflation of copyright issues and increased availability isn’t stopping someone from using it for marketing purposes.

However, all this said would mean that copyright issues come into play when there is no demonstrable human interaction – a tricky grey 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, 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.

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