Decoding Copyright: Who Owns Your AI-Generated Marketing Imagery?

Who holds the rights to marketing imagery generated by artificial intelligence? Can you sue people who reproduce your AI-generated marketing materials without permission?

Surprisingly, courts have already made their stance on copyright protections for non-human creations clear.

Copyright Laws for AI Content 

The United States Copyright Office is a government body that registers copyright claims. In 2024, it released an AI initiative outlining how unauthorized digital replicas — content that has been digitally created or manipulated to depict an individual — must be quickly regulated.

The agency used its initiative to propose new federal laws regulating the creation, reproduction and distribution of digital replicas. This move is unsurprising, given it has previously denied or overturned copyright applications for AI-generated images.

Marketers may be surprised to learn they cannot copyright materials created by a generative model. This is because the U.S. Copyright Office does not recognize AI-generated works as copyrightable — it only accepts human-created content.

Who owns the rights to an AI-generated image?

The Copyright Act grants “the exclusive right” to “original works of authorship” for a limited time to “authors,” meaning people can protect the imagery they create.

While it does not explicitly define what an author is, the U.S. Copyright Office has consistently said they must be human.

Some disagree but have had no luck changing the law.

For instance, a computer scientist named Stephen Thaler said his generative system autonomously created artwork. The Copyright Office rejected his application, stating works must have a human author to be copyrightable.

Thaler then asked the U.S. Court of Appeals for the District of Columbia Circuit to reverse the decision, arguing the word “author” in the Copyright Act can represent a corporation or machine. The appeal likely won’t succeed since courts have long agreed the authors must be human.

Years ago, a monkey took a camera from a British nature photographer and snapped a selfie.

In 2014, courts denied copyright protections for the animal, stating that a non-human creator cannot hold copyright under U.S. law. Instead, it ruled those works become part of the public domain.

To recap, a marketer’s AI can’t copyright marketing materials because it isn’t human. However, courts have consistently ruled they can’t hold the rights since they weren’t the original creator. If they don’t own them, who does?

The answer is no one does — for now, at least.

Marketing materials generated by machines are non-copyrightable. The only people who may have a claim to the rights are the creators who unknowingly supplied their original works to train algorithms.

Can others copyright your AI-generated imagery?

Since a generative model can’t create copyrightable works, any marketing material you produce with one isn’t protected under copyright law.

Although your decision to use AI may not be evident, the lack of a disclaimer or notice may entice people to use your content.

That said, most people will likely overlook your use of AI. Only 11% of people believe they can always distinguish between a photo and an algorithm-generated image. If they mistakenly believe your marketing material is protected, they won’t attempt to use it.

Can you take legal action if someone reproduces or distributes your AI-generated material as their own? Under current laws, you can’t file a lawsuit since you don’t hold the rights to the work. The good news is that no one can copyright that imagery.

How Copyright Laws Affect Marketers Using AI

Marketers using generative models to create marketing materials should be careful of the legal and ethical gray areas currently surrounding copyright law:

• Reliability: According to one recent survey, 29% of respondents observed their employees lacked trust in AI. Are claims made by an algorithm less credible? Does non-copyrighted work seem less reliable?
• Competition: What stops a company’s competitors from stealing its AI-generated marketing materials? What happens when a competitive coworker takes credit for an idea since replicating it is as easy as typing a prompt?
• Infringement: AI tools may promote plagiarism, which can damage brand reputation and lead to legal issues relating to copyright infringement. Training datasets often contain works that were gathered without the owner’s permission.

While using generative technology isn’t inherently risky, it may expose companies to copyright infringement. Also, it does not provide intellectual property protections.

Considerations for Using AI Tools in Marketing

Marketing professionals still use generative technology despite copyright law's uncertainty because it is effective. Around 85% of marketing professionals agree that AI-generated content performs just as well — or even outperforms — human-created alternatives.

Automation has also been a game-changer for many companies. It saves marketing professionals 2.5 hours daily on average, freeing up over 30% of their work week. This change isn’t surprising, given that content creation is incredibly time-consuming.

No matter what industry marketing professionals are in, they can use a generative model to produce imagery. This technology’s versatility is one of its greatest strengths — it can accommodate almost every request.

While leveraging AI tools in marketing can save time and money, professionals should carefully consider the potential risks. Even if they use a reputable service provider, they may inadvertently be guilty of copyright infringement.

Such lawsuits have happened before. Getty Images — a stock photo provider — recently sued Stability AI Inc. for allegedly misusing over 12 million copyrighted photos to train its image generation system. There are also multiple cases of artists suing AI companies.

No credible lawsuits have been directed at end users, so marketing professionals shouldn’t worry too much. However, they should still be careful when selecting a service provider to ensure they don’t face unintentional copyright infringement.

How to Use Generative AI Without Copyright Issues

If you still want to use generative AI for marketing purposes, there are several ways you can incorporate it into operations without significantly raising your risk of legal issues:

• Brainstorming: You can use generative AI in places other than content creation. Use it to take notes, analyze demographic data or get tips on how to use your other tools.
• Fair use: Fair use allows you to use copyrighted works without the owner’s permission. Prevent infringement by making your commercial imagery transformative.
• Derivative works: To be copyrightable, a derivative work must be based on work your company has already copyrighted. It must also meaningfully differ from the original.
• Drafting: If you use AI to generate ideas but create the final product yourself, the work may be entitled to copyright protections.

While these methods don’t guarantee the U.S. Copyright Office will accept your claim, they help.

More importantly, they reduce your risk of infringement, preserving your company’s reputation.