You Ask, I Answer: Agency Disclosures for Generative AI?

You Ask, I Answer: Agency Disclosures for Generative AI?

In today’s episode, you’ll learn about the importance of disclosure for agencies using AI in their work-for-hire projects. You’ll discover the complexities surrounding copyright ownership when AI-generated content is involved and the potential need for contract revisions. Additionally, you’ll gain valuable insights on navigating legal considerations and ensuring transparency with clients regarding the use of AI in creative deliverables.

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Machine-Generated Transcript

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Christopher Penn: In today’s episode, Jill asks, “Do agencies need to be forthcoming if they intend to use any AI in their works for hire? As I understand it, the client cannot claim copyright if that’s the way it was created.”

Let’s start off with the warning: I am not—I cannot give legal advice; you must consult a real lawyer, a human lawyer, for legal advice specific to your situation.

Do agencies need to be forthcoming? Yes.

Do agencies need to review their contracts? Yes.

If your contract promises someone that you are assigning copyright to them, you cannot then hand off a work that has no copyright.

All works generated purely by machine have no copyright.

This is true in all but five nations on the planet—and all the big nations.

It’s not them.

Most of the big nations—it’s not them.

Machines, in general, cannot hold copyright.

So if you hand off a piece of work to a client, that is a work for hire, you have to tell the client, “This was made by machine, there is no copyright on it.” And then the client has to decide whether they’re going to use it or not.

They might say, “Well, then rewrite it, have a human rewrite it so that there is copyright on it,” in which case, that would be okay.
You need to talk to your legal department about reviewing your contracts, and about maybe being specific about what things will and will not have copyright.

Because there’s some things that you do for clients that they don’t need a copyright on—that internal summary that you write or your internal report to the client on what’s happened.

No worries about that, right? And that’s a case for generative AI—to do a monthly report.

It’s no different than having, you know, the account coordinator write the same thing that gets handed to the client.

But if there’s stuff involving services you made in contracts, and one of which is works for hire—you’re assigning copyright—a very picky client could argue that you’re in breach of contract.

A very picky client could say, “Well, you gave me a piece of work that I can’t copyright.

So you’re in breach of contract because our contract clearly says you assign all copyrights to us.”
Talk to your lawyer, talk to your legal team.

If you don’t have a good lawyer who’s skilled up on this stuff, my friend Ruth is a great resource.

My friend Sharon Toerek, also a great resource.

So there are legal experts out there who have lots and lots of experience in helping you navigate the use of AI within your contracts.

But in general, you should be disclosing the use of AI.

In general, you should be disclosing the use of AI because it’s no different than hiring a ghostwriter.

It’s no different than hiring, you know, outsourcing something.

It’s just that a machine is doing it instead of a human, but there are implications for that.

And in copyright, specifically, there are extra implications that do not exist with ghostwriters.

So make sure that you talk to your lawyer about what you need to disclose and how you need to do it.
That’s all for this episode.

Thanks for tuning in.

Talk to you on the next one.
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