USA Trends and Developments Contributed by: Matthew Vittone, Frankfurt Kurnit Klein & Selz
seminate replicas that they know are unauthorised or to distribute tools or services whose primary function is to generate such unauthorised replicas. • New York and California have also passed regula - tions addressing contractual provisions related to digital replicas in performance or talent agree - ments. The laws aim to protect individuals from open-ended or unfair grants of rights to replicate their voice or likeness using AI. These laws state that clauses in performance contracts granting rights in digital replicas are unenforceable if they allow replicas to substitute for live work, fail to pro - vide a reasonably specific description of intended uses, and were not negotiated with the benefit of legal counsel or union representation. In parallel, industry agreements such as the SAG‒ AFTRA (Screen Actors Guild‒American Federation of Television and Radio Artists) Commercials Contract include new rules around how AI can be used on union productions, including specific requirements around usage, permissions, and costs associated with the use of digital replicas and synthetic performers. IP In addition to consumer protection concerns, market - ers should consider IP rights issues implicated by the use of AI-generated content. For advertisers, one of the most pressing copyright issues around AI is whether assets generated with AI can be owned and protected. The US Copyright Office has reaffirmed that human authorship is required for
copyright protection and works created entirely by AI are not registrable. However, advertising content that involves meaningful human creative input (through selection, arrangement, or modification of AI outputs) may qualify for protection – although, to be clear, only the elements of the work resulting from human authorship are protectable. This means brands can potentially claim rights in campaigns built with AI assistance, but only if the human role is documented and substantial. From a risk standpoint, advertisers can bolster their claims to ownership by ensuring that human authorship is embedded throughout the crea - tive process. Marketers should also bear in mind that AI tools have the potential to generate content that infringes on a third party’s copyright, trade mark, or right of publicity (for example, in the case of AI lookalikes or soundalikes). If the system has been trained on or is prompted with copyrighted, trademarked, or other - wise protected material, there is a risk that resulting output may incorporate or reproduce those protected elements. Using an AI-generated image, video or song that inadvertently reproduces protected expression could expose both the advertiser and its agency to infringement claims. Advertisers should therefore review vendor terms carefully, seek contractual indemnities and warranties, ensure proper human oversight, and have in place an AI policy that establishes clear internal rules for how AI tools may be used.
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