MUSE STATE x LAW TEAM

Artificial intelligence is a seductive beast. Since ChatGPT launched in November 2022 the breathless hype about AI’s potential to transform content marketing and copywriting has been impossible to ignore. (Trust us, we tried!)

Rapid Idea Generation. 

Brand Voice Development. 

Social Media Content Creation. 

Email Marketing Campaigns. 

Blog Copywriting.

Multi-Channel Content Adaptation. 

The allure of effortlessly scaling content production with AI is powerful—and persistent.

But while generative AI is winning hearts as the latest marketing MVP, putting all your trust in the technology could damage your brand’s reputation AND get you entangled in a hot (legal) mess. 

No-one wants to get sued because they used AI in their latest blog article or marketing campaign, so we asked our lawyer how Australian brands can protect themselves in a world of AI-generated content. 

Here’s what you need to know. 

1. AI isn’t perfect

When you’re constantly hustling to churn out fresh, relevant content, it can be tempting to prompt, copy-paste and publish AI-generated copy without a second look.

But before you release that content into the world, remember: although AI seems like magic, it isn’t infallible. It can make mistakes, misinterpret nuanced meanings and spin some pretty outrageous tales. Even OpenAI’s terms acknowledge their tools can generate incorrect responses.

Let your content slip through the cracks without thoughtful proofreading and editing from a clever human, and you risk publishing misleading or unreliable content that can seriously damage your brand reputation and credibility. 

And with the legal landscape still trying to catch up with AI advances, it’s anyone’s guess who’d be liable – the creator, the platform or the company that authorised it.

2. AI’s privacy boundaries are blurry

Currently, there’s almost zero regulation around how AI handles your data, which raises a serious red flag around privacy for brands and content creators. 

In the pursuit of unique copy that stands out, it’s easy to unintentionally over-share brand secrets and other sensitive information that can be stored by AI and reused in responses for other brands to use however they want. 

Imagine scrolling through Instagram, spotting your brand story staring back at you from another account, and knowing (with a growing sense of dread) it was crafted from “that” chat you had with AI you thought was private. 

Overshare regret is real, and it’s amplified when your brand’s reputation is on the line!With big brands like Apple, Samsung and Spotify banning their employees from using AI programs like ChatGPT due to privacy concerns, it’s worth practicing the art of holding back before spilling too much tea to these platforms.

3. AI can be biased

AI tools learn from the data we feed them. And that data? It’s often filled with human and systemic biases that, if you’re not paying attention, could reinforce stereotypes, undermine your core brand values and alienate your target audience. 

Plus, if those biases discriminate against people based on grounds such as race and ethnicity; sex, gender and sexual orientation; disability; marital status; or religion, your AI-generated content could cross some major legal boundaries.

Consciously vetting your AI-generated content for these biases is key to responsible  brand storytelling.  

As marketers and content creators, it’s our ethical responsibility to ensure the content we publish does not cause harm, embraces diverse perspectives, elevates voices, and champions inclusivity. 

As business owners and brands, it’s our legal responsibility to establish clear guidelines for mitigating AI bias before publishing AI-assisted content.

4. Right Now, Only Humans Can Create Copyright

Under current Australian Law, only humans can create copyright for the original expression of their ideas.

That means, you can’t copyright the content you make with generative AI tools unless it’s been modified by a qualified (living, breathing) person. 

No human author? No legal protection. 

And because there’s no copyright protection on AI-assisted copy there’s nothing you can do (legally) to stop another brand from producing the exact same content you made using ChatGPT or any other AI tool.

To add insult to injury, if copyright laws evolve to cover AI-generated content in the future, any work you’ve published without protection could be subject to infringement claims and substantial fines. Ouch!

5. You Have The Power to Protect Your Creative Work

Leaning on AI to define your brand voice, streamline content planning or produce hyper-targeted marketing content? Here’s how to protect your AI-assisted creations from legal downfall.

1. Commit to Human-First (and Human-Last) Copy

AI might be great for speedy content creation, but it can’t replace a creative mind and inspired heart. 

If you want to create content that resonates on a deeper level and protects your brand from copycats and copyright litigation, you need unadulterated human creativity. That stuff can’t be manufactured! 

Sure, go ahead and ask ChatGPT your content marketing questions. Read the responses. Understand that’s what everyone else has said on the topic. Then go and say something completely different. 

Share honest human stories. Get vulnerable with emotions. Tap into your intuition. 

And always, always, make sure an inspired human refines the tone, structure, and flow of your copy before you hit publish. 

2. Stay Tuned To Regulatory Change

If you’re a marketer doubling down on your use of generative AI, know this: even two years in, the AI regulatory landscape remains largely uncharted territory. 

With many AI concepts not dealt with in the Copyright Act 1968 (Cth), the existing Australian Laws may not adequately guard against the risks of AI as it becomes more pervasive. And the Australian Government knows it. 

It’s taking proactive steps with emerging laws to tackle deep fake AI technology and the reputational, financial and operational harm it causes. 

Plus, on 15 October 2024, the Government commenced a review of AI and the Australian Consumer Law to determine if it effectively protects consumers who use AI, and supports businesses to use the technology safely and responsibly. 

Their findings could change how AI-generated content is treated in the future, so it’s wise to keep your ear to the ground for developments in AI policy, adapt your approach to content creation and get some expert legal advice if you’re unsure how regulatory changes impact your work. 

3. Read The Fine Print

Protecting your creative rights in the era of AI means being proactive and well-informed. 

Every platform – whether it’s ChatGPT, Canva or Later – has its own set of rules around ownership and copyright that dictate who owns the AI-generated content you create, how it can be used, and what rights you retain (or give up) when you upload or generate material. 

For example, OpenAI technically holds the intellectual property rights to the content it produces (aka the outputs), but it passes those rights straight to you as the customer. Which means, currently, you have full ownership of any content it creates for you. You’re free to use it, tweak it, share it, or even turn it into a moneymaker without needing to ask OpenAI for the green light first! 

However, Lexi AI (the AI tool used by Lawyers) owns all IP in the content it generates, and they don’t give you license to use it as your own. So if you’re a lawyer hitting publish on a blog post that’s straight from Lexi AI without permission, you’re crossing a line with their terms and conditions. A risky move for anyone, but especially for a legal pro. 

So if you want to stay in the creative driver’s seat, pour yourself a cuppa and get acquainted with the T&Cs of every platform you’re using. Knowledge is power!

4. Claim Your Work

Show the world the human behind your content!

Adding a copyright symbol (©), the year of creation, and your name to your original content is an easy yet powerful way to safeguard your IP and officially claim your content as yours.

A copyright notice is your way of saying “Hands Off – this content belongs to me!”. 

It’s a shield against copycats, and your first line of defence if your work is ever misused or infringed upon, so don’t be afraid to use it. 

5. Put a Digital Lock on Your Creativity 

Want a high-tech security system to protect your digital content? 

While copyright protection is automatic under Australian and International Law, Technological Protection Measures (TPMs) such as encryption, digital watermarks and software locks set up virtual roadblocks to keep your work safe and sound. 

And since anyone who tries to “crack” or bypass those digital safeguards is playing with legal fire (sections 116AK-116D of the Copyright Act say so), TPMs are like a bullet proof vest for your IP. 

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Bottom line? AI can be a handy idea generator, but don’t let it undermine your human potential or silence your creative voice. 

Epic marketing moves humans because it was made by humans. 

Stay human. 

Don’t trust the robots? Let thoughtful people write your copy. Summon The Muse. 

Want to protect your IP? Prevention is key. Get Law Team on your side. 

Disclaimer: The information provided in this blog is general in nature and does not constitute legal advice.