AI Best Practices for Branding and Content Creation

Leveraging AI tools in your marketing tech stack.

The latest AI tools are fun and addictive, not to mention time-saving and cost-efficient.

Lean into these technologies confidently by staying ahead of the learning curve and incorporating best practices into your team’s creative workflow.

Intro: Brand & Content Creation from a Marketing Perspective

Your team just created a killer ebook in record time that’s going to impress your boss, spark leading edge conversations and customer engagement across your social media channels, and serve as a wellspring of content for your current marketing campaign. Your secret?  A little help from your (AI) friends. 

Since your ebook text and images were created in part by machines, does your company actually own the intellectual property rights in that content?  Or is there an infringement lawsuit waiting to happen? Assuming one of your minor life goals is to stay off your general counsel’s radar, how do you leverage generative AI tools in a way that protects your company’s brand, reputation and intellectual property?

By now, you’ve probably used, or at least heard of, AI tools like Chat GPT, Claude, Bard, Jasper, Dall-E, Midjourney, and Stable Diffusion, which are revolutionizing the marketing and design fields.  Leveraging AI for these tasks can juice your creativity, accelerate workflows, and free up time for other endeavors. Marketing teams are able to create blog posts with a simple well-crafted prompt, cutting drafting and editing time in half, and then instantly convert those posts to video using text-to-video AI tools—and vice versa. Design teams can create and modify images in much the same way.

But the law is clear—materials created solely using AI cannot be copyrighted or trademarked. So how does a company protect itself? Below we outline seven best practices to incorporate into your workflow to secure your company’s ownership rights in AI-assisted content and reduce the risk of infringement claims.

7 Best Practices – from a Legal Perspective

1. Read the Fine Print. Review the platform’s terms of service related to ownership and commercial use of generated content. Conditions and limitations will apply and will vary across platforms.

2. Comply with Contracts. If creating content for a client, ensure your AI use is in compliance with the terms of the agreement you signed with your client.

3. Craft Strategic Prompts. Use original and specifically-generic prompts to reduce the likelihood of infringing outputs. Omit proprietary or confidential information.

4. Human in the Loop. Make sure a human person contributes substantially to the work to support your claim of authorship and acts as quality control to ensure accurate and reliable information.

5. Check your Work. Leverage text and advanced image searches to check for substantially similar works that might give rise to an infringement claim.

6. Leave a Trail. Keep adequate records to demonstrate the origin and development of the work. Save prompts to metadata, use tracked changes and version control, and/or keep a separate log.

7. Love your Lawyer. Consult with a lawyer if you need guidance. This is a rapidly changing area of the law and a seasoned lawyer can help you avoid common pitfalls.

Let’s delve a little deeper into these best practices to understand the whys and hows. But first, an important disclaimer:

We are not a law firm and we do not engage in the practice of law or provide legal advice or representation. All services, information, templates, and other materials provided on AIGG’s website or otherwise are for informational and self-help purposes only and are not intended as a substitute for professional an competent legal or professional advice. Additionally, references on this site to any specific commercial product, process, or service does not constitute an endorsement or recommendation. Your use of this site and any materials contained herein are subject to our Terms of Use.

1. Read the Fine Print

Before adding AI tools to your marketing team’s tech stack, review the platform’s terms of use and any related policies referenced in the terms of use (i.e., privacy policies, community guidelines, etc.). This is a critical (if boring) step, but very important, as platform terms of use vary widely as to ownership and usage rights granted, whether those rights are yours exclusively, whether works generated using the AI platform can be used for commercial purposes, and what specific conditions a user must satisfy (and potentially be able to later prove) in order to rely on any rights granted by the platform’s terms of use. In turn, users also typically grant broad rights in the generated output to the platform.

By way of example, Claude (Anthropic’s free text generation tool) retains all rights in any outputs, but grants users a non-exclusive license to use the outputs, subject to compliance with its Terms of Service and its Acceptable Use Policy.  In turn, the user grants Anthropic (the owner of the platform) “an irrevocable, royalty-free, perpetual license to use all feedback . . . together with the related Prompts and Outputs or any derivative thereof--in any manner without any payment or credit to you.”

Practically speaking, this means that:

• You will not be able to copyright the outputs generated by the platform, though any modifications or additions you make to the outputs that constitute your original authorship may be protected;

• You have a limited license to use the materials generated by the platform; and

• The outputs generated for you could also be pushed to another Claude user (another reason not to include confidential or proprietary information in your prompts, lest it be assimilated into the Borg and result in potential breaches of privacy rights, proprietary rights, and/or contractual rights ).

Meanwhile, if you are a paid subscriber using Midjourney (an image creation tool by Midjourney, Inc.), you own any content you create using the service, provided that you comply with the platform’s Terms of Service and Community Guidelines.  In turn, you grant Midjourney a “perpetual, worldwide, non-exclusive, sublicensable no-charge, royalty-free, irrevocable copyright license to reproduce, prepare Derivative Works of, publicly display, publicly perform, sublicense, and distribute text, and image prompts You input into the Services, or Assets [i.e., images] produced by the service at Your direction.”

Now this result may be all fine and good from a business standpoint if we’re talking about a blog post or a social media post, where clear and protectable ownership rights may not be critical to the company or its brand and instead the aim is to create awareness or drive traffic to the company’s website. But it can be more problematic if the content will invite infringement claims or when the work in question is an ebook, trademark, trade dress or other valuable intellectual property assets that the company wishes to prevent others from using.

When in doubt, check with your legal team.  What you find boring to parse, they will no doubt find fascinating and will delight in serving up expert advice to guide your marketing efforts while minimizing any risks.

2. Comply with Contracts

If you are creating content or works for a client instead of your own company, you’ll also want to comply with the terms of your customer agreement.  Unless the contract is fairly new or has been recently amended, it may be silent on the use of AI tools.  However, contracts of this nature typically require you to represent that you have the right to assign the copyright in the works to the client, which may or may not be something you can do depending on which AI service you use and whether you have complied with any conditions to using that service.  Again, your legal team can be helpful here.

3. Craft Strategic Prompts

Crafting prompts that return useable content with minimal risk of infringement requires strategy, finesse, and some trial and error. Since AI tools based on neural networks and large language models scrape millions of existing publicly available text and images, there is the possibility for infringement, as evidenced by a number of recent lawsuits.

The trick to creating artful prompts is to be specific enough that the outputs are on point, but not so specific that the content is clearly drawn from another person’s original work, especially if that person is still living or has been dead less than 70 years.  More specifically, you should generally avoid naming specific artists, characters, or works in your prompt and should instead reference styles, themes, or design elements.

By way of example, compare the following two prompts:

Prompt A: “An image similar to Girl With Balloon by Banksy”

Prompt B: “A simple and sparse pencil drawing of a child releasing balloons rendered in a gritty street style and conveying a message of lost innocence and hope”

In the examples above, Prompt A above is more likely to yield “substantially similar” works than Prompt B, although in either case you are still well-advised to edit the image and put your own imprimatur on it. To obtain a copyright over the image, the idea need not be unique, but the expression of that idea must be. To demonstrate that this test has been met, a human will need to have contributed substantially to the work’s creation and design. And while articulating a unique prompt is a good start, it’s not your strongest evidence of human contribution—actual and demonstrable human contribution is your best evidence.

One other note—certainly you could use your own company’s existing copyrighted works in your prompts, but be aware that this could result in improperly disclosing confidential information (in violation of company policy and perhaps your employment agreement) or having the copyrighted work become fodder for another user’s prompts. Using a paid subscription may alleviate these concerns, depending on the platform’s terms of use, as the platform may grant proprietary rights in any generated content (though note that the platform’s terms of use are not the final legal authority on these questions—the legal system is).

For a more technical look (with loads of examples) in using AI to create artwork and avoiding infringement claims, check out this excellent article by Aaron Moss.

4. Human In the Loop

Obtaining a copyright requires at least one human author, which means that substantial human contributions at key stages of the work’s design and development are critical.  This means that a human needs to contribute “substantial original content,” even if said human is simply adding or revising some stylistic elements (for images) or adding additional paragraphs and making revisions to text outputs (for written works).  Whether the legal standard for “substantial original content” is met is up to a court or jury--there is no hard and fast rule, but there are some pretty good educated guesses.  When in doubt, legal counsel can help you navigate these grey areas.

5. Check Your Work

Always run your end product through a program like Grammerly (for text) or Google’s Reverse Image Search (for images) to see whether your work is identical to or “substantially similar” (this is the legal standard) to any existing work.  While the results of this due diligence will not necessarily be definitive, they are immensely helpful in identifying any obvious issues and are great for less formal works such as blog posts and social media posts. 

If the work is likely to have substantial commercial value and/or be distributed widely, such as a trademark, logo, or trade dress, a copyright or trademark lawyer can help you further refine your search by searching federal and state databases for similar works and offer advice as to whether your work is sufficiently original.

6. Leave a Trail

As Denzel Washington reminds us, “it’s not what you know, it’s what you can prove.” Hence the need for developing methodical recordkeeping practices when leveraging generative AI tools for content creation and branding.  You’ll want to keep track of your prompts and their results, as well as any human contributions or edits.  This can be done by saving information to the file’s metadata, using tracked changes to capture human input, or by keeping a separate log. 

For example, the first output by an AI tool could be saved as version 1, with a note in the file’s metadata that includes the prompt and a statement that this iteration was the first result of the noted prompt.  Version 2 of the document can contain a similar note in the file’s metadata that states it contains edits by company staff, or could be more specific and summarize the nature of the changes and the individuals who contributed.  Using tracked changes and comments can also preserve a record of human involvement.

The more important or valuable the work is to the company’s brand or bottom line, the more effort you will want to put into conducting your due diligence and leaving an adequate evidentiary trail to support your copyright application or defend against an infringement claim.

7. Love Your Lawyer

From time to time, you may need help interpreting contract terms, refining search results, or determining whether your work is sufficiently original to qualify for copyright protection and avoid infringement claims. First thing you do, call all the lawyers! Or just your lawyer. 

Keep in mind that this is a developing area of the law, that a website’s terms of service are not the final word on your legal ownership or use rights, and that some judgment calls may be made close to the line with respect to whether a work is sufficiently original and/or substantially similar to another work. Your legal advisor can be a great resource in supporting you in building your brand and capturing the value of your intellectual property assets.

Now that you’ve got the lay of the land, you can feel more confident leading your team as they tap into new reservoirs of creativity and improve their creative workflows. And by staying abreast of opportunities and challenges of using the latest AI tools, you can ensure your company is well-positioned to get the most out of the new tech and maintain a competitive edge.

Resources from AIGG on your AI Journey of Understanding

If you enjoyed this post and want to learn more about the safe and ethical use of AI tools in the workplace, check out our Resources section, where you’ll find free helpful tools, including a legal and operational risks checklist, and AI implementation compliance checklist, and drop-in Employee Handbook policies for your team to review, augment and approve.

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