GenAI and the Future of Agencies
The Evolving Legal Landscape for Digital Agencies in the Age of Generative AI
In 2020 theoretical physicist, Jared Kaplan released his groundbreaking paper outlining how large language models (the engines of AI) that used more data performed better. This simple conclusion set off an online data grab of epic proportions as AI companies sought more and more data to train AI on. With their voracious appetites for data, some AI companies moved fast to get their hands on as much written material as possible with little regard for ownership of said material.
The Data Rush: Implications for Digital Agencies
So some tech companies are behaving badly and abusing data, you say, so why is that my problem? Well, if you represent a digital agency, here’s a scary-sounding bullet point from the researchers at Forrester’s Predictions 2024: “Digital agencies will disappear from the industry landscape.”
That’s not as bad for you as it sounds, though. Jay Pattisall, VP and Principal Analyst at Forrester backs up the prediction with the statement that “as generative AI shapes more conversational, personalized experiences, this will effectively recast all marketing as ‘digital marketing.’ This means that there will be little need for specialized ‘digital’ agencies.” In other words, digital agencies will just become agencies, full stop.
Meanwhile, at the end of last year, marketing researchers from Gartner reported that “marketing chiefs are expected to ramp up expenditures on talent specializing in generative artificial intelligence (AI) to make their dollars go further.”
Intellectual Property and AI
So, marketers are seeking generative AI content and forward-thinking digital agencies are meeting that demand. And that is all well and good except for this little tidbit from Pattisall’s prediction report:
“Agency reviews will increase as fear of AI mismanagement grows. Agencies and marketers will be left to self-govern AI marketing practices until the US and EU enact AI legislation, expected by 2026. This will make business leaders nervous. Sixty-one percent of AI decision-makers are concerned about privacy and data protection that might violate laws such as the GDPR, and 57% are concerned about the misuse of genAI’s outputs leading to errors. As a result, 2024 will see more accounts up for review as marketers look for safe AI implementation to control the reputational fallout from mismanaged AI marketing executions.”
Ouch. That’s a lot of marketers asking a lot of agencies a lot of thorny legal questions about a lot of content generated by a lot of AI that may have been trained on a lot of dubiously gathered data. That’s why Spona put together this set of key considerations to understand when using generative AI for creating campaigns. (And, full disclosure, this list was written with the help of generative AI.)
Key Considerations for AI-Generated Content
1. Intellectual Property Rights
Ensure that you have the necessary rights to use any content, including images, videos, music, or text, generated by AI. If you’re using pre-existing material as input for the AI, make sure you have the appropriate licenses or permissions.
2. Originality
Although AI-generated content can be highly creative, it’s essential to verify that it doesn’t infringe on existing copyrights. Ensure that the AI-generated content is sufficiently different from existing works to avoid any claims of plagiarism or copyright infringement.
3. Licensing and Usage Rights
Be aware of the licensing terms associated with the AI model you’re using. Some models may come with specific usage restrictions or require attribution. Make sure you comply with these terms to avoid legal issues.
4. Ownership of AI-generated Content
Determine who owns the rights to the content generated by AI. In some jurisdictions, the creator of the AI may retain ownership, while in others, it may be considered a work for hire, and the employer or entity commissioning the work may own the rights.
5. Fair Use
Understand the concept of fair use, which allows limited use of copyrighted material without permission for purposes such as criticism, commentary, news reporting, teaching, scholarship, or research. However, the application of fair use can be complex and context-specific, so it’s essential to exercise caution.
6. Trademark Considerations
Avoid using trademarks or brand elements without permission, as this could lead to claims of trademark infringement. Make sure your AI-generated content doesn’t include any protected trademarks or logos without proper authorization.
7. Contractual Agreements
If you’re creating campaigns for clients, ensure that your contracts clearly define the ownership and usage rights of the AI-generated content. Clarify any copyright-related issues upfront to avoid disputes later on.
Legal Safeguards for AI-Generated Content
By staying informed about copyright laws and taking proactive measures to ensure compliance, you can leverage generative AI effectively in your digital marketing campaigns while mitigating legal risks.
Of course, when agencies need to tackle tricky legal questions related to AI, they can call on law firms who, in turn, can call on Harvey (the legal-focused AI chatbot used by thousands of lawyers) for assistance in sorting out legal issues. It’s also a good idea to consult with legal professionals specializing in intellectual property law for specific advice tailored to your circumstances.
