HL Retail and Fashion Holiday Guide 2025 - Flipbook - Page 15
Retail and Fashion Holiday Guide 2025
copyrightability of works incorporating AI elements.
This guidance is helpful for companies seeking to
balance the cost savings and efficiency of using
GenAI in brand campaigns, with the desire to obtain
legal protection over the creative fruits of labor.
First, the USCO clarified that “AI-assisted works” are
eligible for copyright protection. These are works
that use AI to assist or enhance human expression,
rather than to substitute for the expression itself.
Examples of AI assistance include using GenAI to
brainstorm campaign ideas, create written outlines to
assist with building a script, or even synthesize voice
for digital music to be incorporated into the ad.
On the other hand, the USCO clarified that guiding
AI output using prompts does not meet the threshold
creativity requirement for copyright protection.
The USCO determined that these prompts function
as “instructions” that convey unprotectable ideas.
Because AI models operate unpredictably, even
detailed prompts do not give the prompter sufficient
control over the resulting output to claim authorship.
Impact (or lack thereof) on
preexisting copyrights
Importantly, AI does not destroy preexisting copyrights
and may confer even further protection. When a
human’s own copyrightable work is input into a GenAI
tool, and that work is perceptible in output (such as
the earlier example of replacing the background in
a campaign photo, where the other elements of the
photo – the actor, props, theme – all remain), the
human is entitled to copyright protection, including
in the GenAI output, of “at least” the original creative
expression encompassed by the input. The USCO
may also consider the protectability of compilations
of human-authored and AI-generated material, if
sufficient creativity is exercised in the selection,
coordination, and arrangement of elements of the work.
Finally, if a company makes meaningful modifications
to GenAI output, those modifications may themselves
be eligible for copyright protection, depending
on the nature and extent of the modifications. For
example, certain GenAI tools give users control over
“the selection and placement of individual creative
elements,” such as the Midjourney tool allowing users to
select and regenerate regions of an AI-generated image
with a modified prompt. There is some ambiguity as to
3 Thaler v. Perlmutter, 2025 WL 839178, No. 23-5233 (D.C. Cir. Mar. 18, 2025).
how this differs from prompt engineering, which the
USCO does not consider protectable copyright material.
Given these positions taken by the USCO in its
report, companies are well advised to consider the
following best practices for developing marketing
and advertising materials with the use of GenAI:
Where possible, AI should be used as an
assistive rather than creative tool, i.e., for
purposes of brainstorming or outlining what
will ultimately be a human-created work.
For works that are themselves created using AI,
material and creative modifications to those
works should be maximized and documented.
When available, the company’s own humanauthored work should be used as an input
into the GenAI tool, potentially allowing
the user to claim compilation rights in
the resulting AI-generated output.
Ultimately, whether a work developed with the use of
GenAI has sufficient human authorship to be protected
under copyright law is a case-by-case determination,
depending on the specific purpose and use of the
AI tool at hand, but companies can maximize the
likelihood – and extent – of available protection by
making strategic use of this exciting technology.
Lauren Cury
Brendan Quinn
Hadley Dreibelbis
Partner, Washington, D.C.
Senior Associate,
Washington, D.C.
Associate, Washington, D.C.
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