How generative AI is changing creator contracts to prevent brand and copyright risks

This comes as broader AI and copyright policies continue to take shape in the U.S., with tech giants and lawmakers debating the balance of pushing AI innovation and upholding copyright restrictions. For instance, OpenAI already faces lawsuits from The New York Times, The Center for Investigative Reporting and multiple outlets owned by Alden Global Capital. Google was also sued by education company Chegg, which claims that the search giant’s AI-generated summaries in search results impact its traffic and revenue.

“Smart brands may already be adding these clauses not because they’re anti-technology, but because they know transparency builds trust,” said Amy Choi, executive director of creator strategy and marketing at agency Trade School.

AI adoption seems to be growing among creators that use it for various tasks, from generating ideas and creative assets to using bots or virtual influencers. In a survey with talent agencies and individual creators, PMG found in February that almost 50% of creators are using AI in some form — and most use ChatGPT for writing, creative ideation, editing and organization.

As a result, agencies are seeking more transparency and many clients began requesting contractual clauses explicitly stating that no AI was used in content creation in the past year, said Bill Rowley, general counsel at creator marketing company Open Influence. The request increased some 30% or more in new advertiser agreements, with some of their requests varying based on legal teams and policies, according to Rowley.

“Our company does include a reference to AI in many of our creator contracts, based on client preferences,” Rowley said.

Although it’s ultimately a matter of trust whether a creator honors this agreement, this way agencies can get some assurance that content and images from a creator can be used without potentially infringing copyright — or even belongs to a creator, and not the AI platform used to make the content.

“The creators who can clearly communicate their AI workflow will build more trust than those who keep it vague,” Choi added. “As AI becomes embedded in every step of content creation — from brainstorming to publishing — trying to draw a line between AI content and human content gets messy.”

Occasionally, some clients have also requested a “broader prohibition” that the agency does not use AI in its work at all. The agency expects to see more nuanced AI terms as these tools get integrated into various parts of companies’ workflows, Rowley added.

At Trade School, agreements focus mostly on whether a final output video or image utilized AI: “But the smarter brands are already asking about AI’s role throughout the creative pipeline – from initial concept to final edit,” Choi said.

Another marketing agency shared on background that clients raising brand safety concerns are adding a clause for influencer contacts specifically around the use of AI without “prior written consent.” This request started to emerge since late 2023 – which follows when AI tool ChatGPT entered the scene around January 2023. The agency noted that the rest of its “on camera principal” (featured actor on camera) talent contracts will add this language on a case-by-case basis, depending on the client and specific situation.

Creator contracts and AI terms are part of an evolving conversation as brands and agencies try to proactively get ahead of licensing and copyright problems, said Yelena Ambartsumian, founding attorney at Ambart Law, which focuses on issues related to intellectual property and copyrights. These could backfire and damage brand reputation if problems arise with the content.

“Outputs of generative AI are not copyrightable, because they lack human authorship,” Ambartsumian said.

Additionally, AI content poses copyright infringement risks if the AI models are trained on copyrighted material, which is often the case with AI platforms. A marketing company that she consulted was developing and editing a character mascot using AI tools. Since the “creative expression” was made by the machine, Ambartsumian said she advised the company that the product was not “copyrightable” and, based on terms of the AI vendor licenses, they would actually give the license back to the AI company.

“That means that an advertiser that publishes an AI-generated image which potentially infringes on someone’s copyright may not have recourse against the AI system responsible for the infringement – and may also be liable for direct copyright infringement to the copyright owner,” Ambartsumian explained.

As far as disclosing use of AI, brands seem to handle it on case-by-case basis so far. Uladzimir Seuruk, CEO of health supplement brand Cata-Kor, sees more companies and creators trying AI to speed up content creation and production – but the disclosure of usage comes down to practicality and preference for a brand.

“With influencers and companies, there does not seem to be any clear-cut solution,” Seuruk said. “It comes down to personal brand guidelines and their decision on authenticity.”

Agencies also anticipate seeing more clear-cut additions and further AI disclosures becoming a standard practice in the near future. It can get more nuanced as various tools might be used throughout the creative and marketing process, from art generation on Stable Diffusion to caption and writing tools like Captions AI.

Added Choi: “The best contracts won’t just ask, ‘Is this AI-generated?’ – but rather, ‘Where and how was AI used throughout your process?’ It’s about transparency across the entire creative workflow.”