How to use artificial intelligence - legal aspects in an interview with Magda Korol of Creativa Legal.

What does widespread access to artificial intelligence mean for the marketer? What is worth knowing when firing up a GPT chat or midjourney? What to watch out for, what to warn the customer about, how to safeguard your interests and theirs? Magda Korol, Attorney at Law, Managing Partner at Creativa Legal and President of the Creativa Education Foundation, talks about this with Marek Dabrowski, Digital Marketing Specialist at Tigers.

Marek Dabrowski, Tigers: AI and its possibilities fascinate marketers, social media is filled with tips and inspiration on how to use its power in everyday work - what can we do and what can't we do when we invite artificial intelligence to collaborate on graphics and content? 

Magdalena Korol, Creativa Legal: When we want to use content generated by AI, we should first of all pay attention to whether the regulations of a given AI tool and the version of the program we use (paid or free) allow us to do so. Fortunately, most of the terms and conditions of currently available AI tools do not stipulate major restrictions on the use of content generated with them, so as a rule they can be freely used for private and commercial purposes (e.g. advertising). 

Regardless of the above, content created by AI tools can be freely used as a source of inspiration to create your own content, which I personally recommend

This is because it is worth remembering that a work "created" by AI is not a work within the meaning of copyright law, and the greater the human creative contribution to the AI-generated content, the greater the chance of granting copyright protection to such a work.  

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MD: However, it is becoming increasingly common to hear claims that AI does not inspire the content in question, but copies it (especially in the case of graphics). Is it possible to draw any line here between inspiration and copying? Are there any ways to determine whether an AI-generated work violates someone's copyright? 

MK: In drawing the line between being inspired by someone else's work and copying it, it helps to refer to the essence of inspiration, which is to express the same idea/concept, only in a different way. For example, the idea of a graphic entitled. "bouquet of flowers" can be expressed in the form of many different original graphics (each of which can be an independent work).  

In other words, inspiration is about creating your own work based on an earlier idea, rather than simply copying ready-made expressions of that idea (such as graphics).  

Given the imperfection of modern AI tools and the way it "learns" (which involves analyzing content previously available on the Internet), the risk of it copying someone else's work should always be taken into account. To mitigate this risk, it is worth comparing AI-created graphics with existing works, such as by using a web browser's search option for similar images.  

MD: From a brand communications perspective, what opportunities do you see in using AI to create content? What is AI able to help us with, where can it ease our burden?  

MK: AI tools can help primarily in the creation of simple, "current" content, such as posts, blog entries or illustrative graphics. This is because in this kind of tasks AI performs no worse than a "human" creator, and at the same time does not require the completion of formalities related to, among other things, the transfer of copyrights. Therefore, if we need simple content , generating it with AI tools can be a good solution, allowing us to delegate "human" marketers to more complex tasks. However, it is always necessary to keep in mind the risks I mentioned earlier, such as the risk of AI committing plagiarism.

MD: But what if we care about content that is used for a long time, such as logos? In this regard, are we able to create them with AI and register them later? 

MK: Among the statutory requirements for registering a trademark (e.g., a logotype), there is no condition that it must be a work or at least a human creation. Formally, therefore, there is no obstacle for a logotype created by AI to be registered as a trademark (provided that it meets the other requirements, including having distinctiveness). However, it should be borne in mind that logos are also subject to copyright protection, and this may raise problems, when creating them with the help of AI.

MD: What risks, including legal ones, are worth considering when using AI solutions to work for clients and brands? 

MK: Marketers and their customers should first of all remember that AI-generated content is not a work under the law (after all, only a human being can create a work), so it cannot be effectively banned from being used by others.

The AI-generated graphics published on the brand's profile can be freely copied and used by all interested parties, which the brand will not be able to counter. 

For the reasons mentioned above, AI tools are better not used to create content for which we would like to have exclusive rights. 

Another potential risk associated with AI is that it could generate a work that is a slightly modified reworking of a work by a "human" creator. In such a case, the use of a rework created by AI in a marketing campaign would constitute an infringement of the copyright of the original creator, which for obvious reasons would be detrimental to both the brand and the marketer. Therefore, it is always a good idea to make sure (e.g., by using the aforementioned web browser search option for similar images) that the AI-generated artwork is not such a rework. 

MD: What if content created by AI infringes copyright? What would the whole process of claiming copyright infringement by AI look like in case the author of the content tried to assert his rights? Who would be liable for copyright infringement? Additionally, what consequences could be expected in this regard? 

MK: In the case described, responsibility for copyright infringement would be borne first by the entity that distributed (e.g., published on social media) or otherwise used the content in question, which is most often a brand. The author who noticed the infringement should first address a summons to such an entity to cease infringing its rights and to pursue other claims under copyright law(including publication of an apology, payment of damages).  

If the resulting dispute could not be resolved amicably, the next step would be to take the case to court, which, after an evidentiary hearing, would issue a verdict either granting or denying the author's claims.  

If the copyright-infringing content has been provided to the brand by a marketing agency, the brand may seek compensation from the agency for damages incurred as a result of the infringement(including reimbursement of the equivalent of the compensation paid to the author and the costs of litigation). At this point, it is worth mentioning that the provisions of cooperation agreements between brands and agencies may stipulate the obligation of the agency to pay, for example, a contractual penalty in the event that content infringing someone else's copyright is provided to the brand. 

MD: How do you see the future of the development of AI tools and how, as content creators, can we begin to reasonably familiarize ourselves with them and weave them into our daily work? 

MK: Although as AI tools develop, the quality of the content generated with them will probably increase, it will still require human handling for a long time to come. This may be the direction of the evolution of the marketing profession, which in the future will be more of a "creator of content ideas," then "put into practice" by AI, rather than a creator of the content itself.

Fortunately for marketers, we will probably still have to wait for artificial intelligence capable of planning a marketing campaign from A to Z on its own. 

In conclusion, marketers should not be afraid to use AI tools, at the same time they should not rely on them 100% either. After all, while AI does a good job of helping create simple content, it cannot create legally protected works (which brands also need). A marketer should therefore develop their skills in both using AI tools and creating original, original content.

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Are you interested in this topic? We invite you to subscribe to the podcast "Let's talk marketing - Magda Korol on law in marketing". Episode three is entirely devoted to the legal aspects of using AI.