Standing out in the Age of AI
Featured This Week: Lauren Snow, Attorney at Goodspeed Merrill
We are so grateful to have Lauren Snow join the Andrews Artistry community this week. Lauren is an intellectual property attorney at Goodspeed Merrill who graciously offered her expertise to help small business owners navigate one of the most important and often overlooked conversations in the age of AI — what you actually own, what you risk, and what to do before any of it becomes a problem. This is a great opportunity to educate ourselves on best practices so grab your coffee and settle in.
AI, Your Brand & the Law
What Small Business Owners Need to Know Before AI Becomes Part of Your Brand
Artificial intelligence (“AI”) has made it easier than ever for small businesses to create professional-looking websites, social media posts, trademarks, and other marketing materials. While AI is a great opportunity for many business owners, there are several legal questions that everyone should understand before making AI a regular part of their branding and content strategy.
AI can be an incredible tool to brainstorm, organize, draft, edit, and work faster. However, just because an AI tool created something, it does not mean you automatically own it, that it is safe to use, or that it is protectable. The most important question is not simply whether you used AI to create your branding materials or digital content. Rather, we need to understand what exactly a human actually created, and what rights everyone else has, before you post anything you create using artificial intelligence. This article and the checklist that follows is intended to help guide you through some important legal questions to ask when incorporating AI-generated content into your branding and marketing.
Watch: Standing Out in the Age of AI
In this webinar we covered:
- What AI signals to other people when you use it in your business
- What to hand off to AI and what to keep in human hands
- Three key pillars that help you stand out even when you don’t use AI at all
- What you own, what you risk, and what you should never assume
- The real risks of using AI in your branding
- What copyright and trademarking actually means for your business
- What rules AI is still subject to when it comes to ownership
- How to use AI in a way that protects you and your clients
- The risks of what you put INTO AI, not just what comes out
- Real use cases broken down by low, medium, and high risk
The Basics
Copyright vs. Trademark.
Before talking about AI, it helps to understand some fundamental principles related to intellectual property rights that could come into play any time you use AI-generated content in connection with your business. There are many different types of intellectual property, but for the purposes of this article we will focus on copyrights and trademarks.
Copyrights protect original works of creative expression when they are fixed in a tangible medium. Blog posts, photographs, illustrations, music, and other creative works can be protected by copyright once they are “fixed,” meaning once they are published, drawn, or written out on paper. Copyright protects the expression of an idea, rather than the underlying idea itself. For example, you may have an idea for a blog post about five ways to improve your business. The idea itself isn’t something you can own through copyright, but the original article you write to express that idea may be protectable. Copyright rights exist as soon as the work of art is “fixed,” although you do need to register the copyright before you can sue for copyright infringement (which is a topic for another post).
On the other hand, Trademarks act as an indicator of source and point to a single creator or purveyor of a specific good or service. The idea is that when you see a trademark, you know exactly who you are dealing with. A trademark can be a name, a logo, a tagline, even a smell, as long as it points to one single source of origin. Trademark rights can exist at common law simply by using a mark in connection with the advertising of your services or sale of your goods, with a registration with the relevant state authority, which gives you protection within that state, or at the federal level with a registration with the United States Patent and Trademark Office. Trademarks protect the consumer by identifying a single source of the goods or services provided, and they also protect the trademark owner by granting the trademark owner the exclusive right to use their mark and prevent others from using the same or similar mark in a way that would cause confusion.
Put another way:
- Copyright asks: Who created this work of art and is it protected?
- Trademark asks: Does this mark identify a business, and could consumers be confused about who they are dealing with if I use the mark in connection with the advertising of my services or sale of my goods?
A single branding asset can involve both. For example, a logo may contain copyrightable artwork while also functioning as a trademark for a business.
What Happens When AI Gets Involved?
Artificial intelligence has sparked a new era of copyright law and is changing how we think of the actual creation and protection of original works of authorship. Now we have to ask whether artwork generated by AI is even capable of copyright protection, and separately, whether the AI-generated content could infringe someone else’s copyright rights.
The United States Copyright Office has recognized that AI can be used as a tool in creating copyrightable works. However, the Copyright Office has determined that copyright protects only human authorship; that is, purely AI-generated expression is not, without a meaningful human contribution, protectable by copyright. Moreover, the human contribution must be more than just inputting a prompt. The more substantial the contribution, the stronger the argument for copyright protection in the work.
Apart from the ownership question, we also have to explore the question of whether you have a right to use any material created by artificial intelligence. Just because AI created the content, and even if the content is not subject to protection by copyright, that doesn’t mean that the material itself is free to use. AI-generated content may infringe a third-party’s intellectual property rights if the resulting content resembles or incorporates someone else’s protectable materials. Using any logo, imagery, website copy, product design, or other materials can create unintentional consequences if the artificial intelligence tool produces something that looks substantially similar to existing works of art that are protected by copyright rights. This type of content can infringe intellectual property rights regardless of whether anyone can own the resulting output.
AI Is Not A Lawyer.
The artificial intelligence tools on the market today can be amazing assets. They can be a fantastic brainstorming tool, they can produce incredible outputs, but they cannot substitute legal advice. Intellectual property lawyers are trained to perform comprehensive legal searches to address certain risks involved in the use or application for registration of certain intellectual property rights. For example, a trademark put into use in the advertising or sale of a service or product can infringe a third party’s trademark rights if the subsequently adopted trademark is so similar to a previously adopted trademark such that the subsequent adoption would be likely to cause confusion among consumers in the marketplace.
A trademark lawyer will perform a detailed search of the United States Patent and Trademark Office, the web, and other trademark registries to determine whether there are already marks in use that could affect the subsequent adoption of the mark. A name does not have to be identical to an existing trademark to create a problem. Similar marks, related goods or services, marketplace context, and other factors contribute to the analysis. At least at present, the current AI tools in the general marketplace do not substitute professional legal advice.
You Are What Makes Your Business Different.
AI Cannot Replicate That.
Aside from the legal issues, artificial intelligence is creating a competition problem. You may be familiar with “AI slop,” which UrbanDictionary.com defines as: “Low-quality randomly generated AI content.” The term is used now to describe low-effort content that floods some social media and other website pages. Given that most people have access to and are using the same AI tools, the outputs largely start to look and sound the same, and as a result, website posts and advertising materials are quickly scrolled by without a second thought.
AI is very good at producing competent, polished, generic content. However, competent, polished, and memorable are not all the same thing. Your competitive advantage may be the very thing that seems too specific, unusual, personal, or “weird” to put into your marketing. It’s your own experience, stories, opinions, sense of humor, and your particular way of doing things that make you and your content unique. Artificial intelligence can help you amplify or organize your material, but it should never replace it. If you are not particularly adept at writing, AI can be your brainstormer, your editor, or your sounding board. It can be a great assistant, but it should not become your lawyer, your brand creator, or your compliance officer. The more important the content is to your business, the more important the human review becomes.
Before you put AI-generated or AI-assisted content on your website, social media, packaging, or advertising, ask:
- WHO created this? What did a human actually contribute?
- WHAT rights do I have? Have I checked the relevant AI provider’s terms and the circumstances under which the material was created?
- COULD this belong to someone else? Does the content resemble or incorporate someone else’s brand, artwork, photograph, character, or other protected material?
- IS it actually true? AI can confidently produce incorrect statistics, citations, testimonials, product claims, and other information. Advertising claims still need to be truthful and adequately supported.
- DOES it actually sound like me? If your customer removed your logo from the page, would they still recognize your business?
The Big Picture
Ultimately, you do not need to be afraid of AI and I would encourage you to embrace it where appropriate. You do need to be thoughtful about how you use it, and you do need to engage with professionals to ensure that you have rights to use the output, the output does not infringe a third party’s intellectual property rights, and that the resulting message and your personal “you-ness” is not lost.
The legal landscape surrounding AI is continuing to develop, but some practical principles are already clear:
- AI-generated does not automatically mean copyright-protected.
- AI-generated does not automatically mean legally safe to use.
- AI is not a substitute for professional services.
- And perhaps most importantly: Your human experience, creativity, expertise, and perspective are not replaceable by AI.
If artificial intelligence is becoming part of your brand, intellectual property, advertising, or core business operations, a little guidance early can be much less expensive than fixing a problem later. Use AI to work smarter, but don’t lose the human part that makes your business yours.
4 See: https://www.uspto.gov/trademarks/basics/why-search-similar-trademarks
5 See: https://www.urbandictionary.com/define.php?term=AI+slop
Before You Publish AI-Generated Content
A Small Business Owner’s Quick Checklist
COPYRIGHT
- Did a human meaningfully create or modify the final work?
- Did I substantially edit or rewrite the AI output where appropriate?
- Did I contribute original writing, photographs, artwork, or other creative material?
- Have I preserved my human-created source materials?
- If this content is commercially important, should I consult an attorney about copyright protection or registration?
THIRD-PARTY RIGHTS
- Did I ask AI to imitate a particular person, artist, brand, character, or copyrighted work?
- Does the output contain recognizable third-party material?
- Did I upload someone else’s copyrighted material into the AI tool?
- Do I actually have permission to use the materials I provided?
TRADEMARKS
- Is this a new business, product, or service name?
- Did I conduct an appropriate trademark clearance search?
- Did I consider similar marks, not just identical ones?
- Am I relying on AI to tell me whether a trademark is “available”?
BRAND
- Does this sound like me?
- Does it contain my actual expertise or experience?
- Does it say something my competitors couldn’t say?
- Did a human make the final creative decision?
FACTS & ADVERTISING
- Did I independently verify factual claims?
- Did I verify statistics, citations, quotations, and testimonials?
- Could a customer reasonably be misled?
- Do I have evidence to support claims about my products or services?
BEFORE YOU PUT CONFIDENTIAL INFORMATION INTO AI:
- Does this contain confidential business information?
- Does it contain customer, employee, financial, or other sensitive information?
- Does it contain trade secrets or unpublished business information?
- Have I reviewed the AI provider’s terms and privacy/data practices before entering the information?
Final Thoughts
- Clear, helpful content
- Pages that do what they’re meant to do
- A site that’s easy to access
It just needs to be understandable — for people and for Google.
Need Legal Guidance on AI in Your Business?
If copyright, trademark, or AI ownership questions are starting to feel like one more thing on an already full plate, Lauren Snow at Goodspeed Merrill is exactly who you want in your corner. She works with small business owners to navigate the legal side of branding and intellectual property so you can move forward with confidence.
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