Entertainment and Media Guide to AI

Legal issues in AI part 2 - Gavel icon

Read time: 9 minutes

As with copyright, trademark and patent law raise thorny issues in relation to artificial intelligence, and in particular generative artificial intelligence. Trademarks play a crucial role in protecting a company's identity and reputation, and issues are likely to arise in the context of AI-generated or AI-assisted art. In the context of AI, patents are used to protect technical inventions, including those developed with the aid of AI. However, specific problems arise when it comes to patenting inventions generated by algorithms. Finally, the question arises as to whether the AI system itself can be protected as a trade secret.

Trademark and generative AI tools

We expect internal marketing departments to increasingly rely on generative AI to prepare creative content, which will yield content that could be protected by trademark law in addition to copyright law.

For example, a generative AI application might be asked to produce a slate of potential new product names, a fresh look for a webpage, a new slogan for an ad campaign, or a short audio signature or jingle to be used when consumers interact with a new product or game. It’s worth remembering that any of these might be protected by trademark law because they could serve as a source indicator for consumers. Trademarks aren’t just the company name and product name; they are also slogans, sound signatures (think, the MGM lion’s roar), packaging designs, and more. When AI is used to generate these signatures, trademark clearance will be even more critical.

Where before, your internal marketing team might intuitively recognize a slogan or sound as already trademarked and steer clear of such arrangements, a trademark generated by AI might be just different enough not to set off any alarm bells during human review. Models trained on trademarked content, however, could generate outputs that infringe existing trademark rights. Trademark clearance, which is already our recommended approach for all new brand indicia, will be especially critical for AI-generated or AI-assisted content. A robust clearance process will provide reassurance that whatever the output of an AI tool looks, reads, or sounds like, that output will be compared back to the trademark register to identify possible conflicting marks before they become a problem in the marketplace. Trademark clearance provides a risk assessment of using the newly generated source indicator so you can move your brand forward with a better understanding of the legal risks.

We also want to remind our clients that trademark issues can come up inside copyrightable pieces of entertainment content. Should this happen to you, we encourage you to reach out to us to evaluate your use and ensure it falls under the category of fair use. It’s worth remembering the major Ninth Circuit decision in ESS Entertainment, where the Grand Theft Auto video game depicted a satirized version of the Play Pen club, and the club sued the game maker for trademark infringement.1

Issues like those in ESS Entertainment are more likely to come up in the context of AI-generated or AI-assisted art, where each element of a video game, movie, or commercial might not get the thoughtful treatment it would otherwise receive if a human were responsible for adding every aspect of the design.

In ESS Entertainment, the court found the use was fair and therefore not infringing, but we highly recommend an outside evaluation before publishing your content to make sure you aren’t putting your business at risk when using generative AI tools to prepare or inspire it.

Key takeaways
  • The use of generative AI in marketing and content creation poses challenges in trademark protection
  • The evolving legal landscape around AI and patents involves debates on whether AI can be recognized as an inventor
  • Applying trade secret protection to AI involves challenges such as the need for secrecy, vulnerability to reverse engineering, enforcement difficulties and the risk of employee leakage