Case Study: Gen AI Tips for Marketing Teams

Generative AI (gen AI) might seem like a great tool for marketing teams. However, it comes with some significant risks to manage. For one, generative AI is not a person and therefore its outputs are not inherently protected by copyright. Additionally, gen AI models are built on existing works, and their outputs may infringe on the rights of other copyright holders. There is also the issue of data privacy. Often, what you feed into an AI system becomes part of that system’s training data. Meaning your prompts are not confidential, and elements you feed into the AI may appear in other works. A recent memo from Troutman Pepper Locke discusses these risks and gives some pointers for helping navigate gen AI use in marketing:

1. “Intentionality. Decide why you’re using AI before you do. ‘Because it’s faster and cheaper’ isn’t a strategy.
2. Human fingerprints. The more your team edits, refines, and shapes the work, the more legally protectable it becomes.
3. Contracts that catch up to reality. Update your creative service agreements. Define what ‘AI-generated’ means. Decide who’s responsible if something goes wrong.
4. Data hygiene. Treat AI prompts the way you treat public statements — assume the internet is listening.
5. Critical distance. Ask not only what AI can make, but what it’s making of you, your team, and the ‘content.’ The technology will likely impact your hiring practices and team management more than you currently anticipate.”

Marketing departments face unique risks associated with gen AI, especially when it comes to copyright. It is critical that companies own their brand identities and can defend those identities against infringement. Any gen AI use that could imperil copyright protection should be carefully managed to mitigate these risks.