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Copyright and Brand Considerations in the New World of AI Everything

November 10th, 2023 | 8 min. read

Copyright and Brand Considerations in the New World of AI Everything Blog Feature

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AI tools are making a big splash across industries, and ecommerce is no exception. With promises of enhanced efficiency and delegation, streamlined workflows for page and image generation, and a whole host of other potential innovations on the horizon, many are already anointing artificial intelligence as a bona fide game changer for those within the sector. 


No doubt, the current benefits of AI are remarkable; no doubt, they’re something to get excited about. But as with every new technology of this magnitude, it’s essential for ecommerce businesses to be responsible, strategic, and considered in their usage of AI. As many skeptics have cautioned, there are still limitations and drawbacks to a top-down integration of such solutions, some which have yet to be fully explored. Especially when it comes to questions of copyright and brand creation, your enterprise must first and foremost be smart about how you use generative AI.


Even if you’re not looking to dive headlong into the world of AI everything, here are some vital considerations your leaders should take into account for the introduction of AI into your ecommerce stack.


Does AI-generated content violate copyright?


For those exploring both the ethical and practical limitations of artificial intelligence, copyright has proven to be of major interest, and it’s essential that ecommerce organizations keep it top of mind as they decide how and to what extent they wish to use AI to enhance their brand.


Even for those who haven’t had the opportunity to use AI on the job, copyright laws having become such a hot topic should come as no surprise. The first things most of us saw from tools like DALL-E and ChatGPT were image galleries with titles like “If Tim Burton directed Lord of the Rings,” or TikToks where an eerily accurate Spongebob voice sang 80s karaoke standards. When generative AI became available to everyone, the immediate instinct was to see how we could use it to recreate and recontextualize existing pieces of art and culture—many of which were copyrighted. 


Now, it’s unlikely that your head of brand marketing is going to ask you to create an email banner where Bugs Bunny is hyping up your products; but—because of how tools like DALL-E and ChatGPT generate their outputs—the question of copyright remains pertinent. If I’m creating brand images from bits and pieces an AI tool has taken from elsewhere on the internet, am I potentially violating the copyright of my sources? 


Frustratingly, at the moment, the answer remains unclear. Generative AI tools are still quite new, and it always takes time for the existing legal framework to adjust to new technologies. However, there has been a greater call for regulation as evidenced by President Biden’s recent Executive Order on Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence. 


Although a strong legal framework or clear precedent have yet to be established, there is no shortage of cases. At the moment Getty Images is suing Stability AI, claiming that its solutions copied both their copyrighted images and the associated metadata, but no verdict has been reached. In a separate case, a US judge recently dismissed artists’ class-action lawsuit against several Generative AI firms, citing insufficient evidence of copyright infringement. Some experts in the field are trying to glean insight from cases such as the Supreme Court’s recent decision that silkscreens created by Andy Warhol of a photograph of Prince were not transformative enough to qualify as fair use of the image. This is an example of a ruling that could have a genuine impact on the question of AI scraping existing works for content. 


Of course, whether or not your organization can be sued for copyright infringement is not the only thing to consider when making AI-generated content central to your branding. While certain images might ultimately be protected by fair use, consumers could sour on your brand if an overuse of AI leads to a feeling of inauthenticity. So much of standing out in the competitive ecommerce world comes down to developing a unique identity and a trusted reputation. If your company becomes synonymous with taking branding shortcuts, you could find yourself facing consequences that have nothing to do with a courtroom.


Is my AI-generated content protected by copyright?


The thorniness of copyright laws and AI doesn’t stop with questions of infringement, however. Many experts are now pointing out that there’s a good chance the AI branding you create won’t truly be “yours.”


The US Copyright Office has long held that works created by nonhumans cannot be copyrighted, which many believe includes images created through DALL-E—many, but not all. The counter-argument suggests that because generative AI tools require a prompt crafted by a human, the image would actually be a collaboration, rather than solely machine-generated. According to Daniel Gervais, a professor at Vanderbilt Law School, in an interview with Built-In, the deciding factor will likely be how much authorship the human contributed.


To illustrate their point, the site relays the case of Kristina Kashtanova’s graphic novel Zarya of the Dawn, whose text and story was entirely written by the author, but whose images were created by Midjourney. Initially, in September of 2022, the US Copyright Office granted registration for the book. However, they quickly reversed their decision, claiming the text could be copyrighted but the images could not be, going on to note that any editing done to the images after their generation was too negligible to outweigh the role of the tool. Following this reversal, the office made it policy—affirmed by federal courts—that human-generated prompts did not count as sufficient input to make an AI-generated image copyrightable. 


Are you aware of AI’s inherent biases?


Another key consideration for those looking to make generative AI a central part of their brand strategy is the inherent bias that many of these tools possess. Much like an individual, an AI is a product of the inputs that it has been trained on, and, thus, subject to the prejudices that are inherent to those inputs.


In the case of image generation, this manifests in a frequent lack of diversity unless said diversity is specified within the prompt. For ecommerce businesses looking to promote a socially conscious and progressive identity, this means that team members must work to counteract the biases of the tools which they are employing.


As with many of the uncertainties surrounding generative AI, its potential for bias underscores that—currently—the best use for the technology is supplemental. You will still need smart, creative, and driven professionals to guide and shape the content created by AI, both while brainstorming prompts and while editing the resultant outputs. In the case of racial biases, it’s critical to ensure that you approach your branding with the same rigor, care, and sensitivity you would with something created entirely by a person.


Are you responsible about data security surrounding AI tools?


A final AI consideration worth engaging with is that of security. This is less of a concern when discussing generative AI tools, but has become a major discussion point surrounding AI in general. It’s also very important for any business interested in personalized website experiences—which you should be.


Personalization has become the standard in ecommerce, and organizations who leverage it effectively are known to see increases in customer loyalty and spend. Of course, as personalization becomes more common, expectations among consumers rise and ecommerce enterprises can find themselves in an arms race to provide the most dynamic, most adaptive experiences possible. Luckily, various AI tools have stepped in to help meet those expectations, promising to do incredible things with the customer data you have on hand.


Any time customer data is being used, your company needs to keep security front-of-mind. If AI-based personalization is part of your strategy, you must scrutinize every tool you consider to ensure that whatever information you feed it is protected to the utmost degree. But the burden can’t solely fall on the tool. You must regularly audit your own security and compliance protocols to guarantee that when you’re selling to your customers, you aren’t selling your customers out.


Thriving in the new world of AI is on you as much as your technology


When discussing topics like these, it can be easy to get down on AI, but that’s not what we want your business to do. AI does indeed have immense and exciting potential, and you should be thrilled to use it. The solutions at your disposal have the power to elevate your ecommerce business to new heights and help you achieve goals that, years ago, seemed impossible.


You just have to be conscious of how you’re using AI.


In each of the three areas we highlighted, the difference between success and failure comes down to the judgment of the users. If you’re worried that something looks too close to another brand’s work, speak with your legal team. If you want to promote diversity, make it a priority in your prompts. If you want to provide personalized experiences without violating customer trust, make sure your security and compliance protocols are up-to-date.


Once you take these steps, you’re in a prime position to take full advantage of generative AI - and you won’t believe what you’re capable of.


If you’re looking for guidance on the steps to successfully leading your team and brand through the adoption of AI, check out this guide: Leadership in the Age of AI: Transforming Ecommerce Workflows to Create a Culture of Experimentation.