AI is accelerating the creation of marketing content, but its growing use is introducing legal risks that require companies to preserve human judgment and apply established advertising and intellectual property rules. In a recent webinar, Shahin Rothermel, co-chair of the firm's Advertising Law Practice, and Justin Pierce, co-chair of Venable's IP Division, examined how AI-generated advertising intersects with copyright, consumer protection, disclosure requirements, and corporate governance.
AI Advertising and Copyright Risk
Pierce said a central IP question arises when marketers use generative AI to produce images, copy, or other creative material, because U.S. copyright protection requires human authorship, and content generated primarily or solely by AI generally cannot qualify.
Companies can address that issue by treating AI output as an early step rather than a finished product, documenting prompts and subsequent iterations, and having employees substantially refine the material.
"But the more you put your human spin on that, the more likely you're going be able to claim copyright ownership," Pierce said.
Those records can also reveal risk because prompts directing a system to imitate competitors, copyrighted imagery, or branded material could become evidence in litigation or regulatory investigations. Rothermel added that regulators are increasingly interested in those records, noting that "they've started asking for things like search terms from major searches, but now they're starting to ask, 'what were the prompts?'"
Advertising Rules Still Apply
AI does not displace long-standing advertising standards, Rothermel said, meaning companies must continue evaluating whether the overall consumer experience conveys false, deceptive, or misleading messages. That analysis can become complicated when advertisements use synthetic people or testimonials that consumers could interpret as depicting actual customers, and advertisers remain responsible for substantiating reasonable takeaways.
"The reasonable consumer is not an AI bot, it's not an AI agent," Rothermel said, underscoring why companies should not rely on AI alone to determine compliance. Pierce also stressed the importance of human judgment. "You shouldn't just be relying on AI to get you to the answer," he said, particularly when evaluating multifactor intellectual property issues such as likelihood of confusion in trademarks, or fair use in copyrights.
AI Disclosures and Human Oversight
Emerging disclosure requirements add another layer of compliance. Rothermel pointed to laws addressing synthetic or AI-generated advertising and the circumstances in which companies may need to disclose AI use.
Pierce recommended tracking the provenance of advertising assets so businesses know whether material originated with a human creator, an AI system, or a combination, information that can inform both disclosure decisions and copyright claims.
Human review should also be built into the process, with legal or compliance personnel positioned to approve or reject higher-risk content rather than allowing automated systems to make final decisions. Pierce described that safeguard as "having a human in the loop and having a critical part of governance that's real and that isn't just a check-the-box move."
Building Practical AI Governance
Rothermel and Pierce both emphasized that effective AI governance should reflect how an organization operates, rather than existing as an aspirational policy disconnected from everyday marketing practices.
"Make sure that when you reduce that to writing, it actually fits with how you and your team work," Pierce said.
Rothermel cautioned that a policy companies fail to follow can become damaging evidence in a dispute. The speakers also said businesses should consider contractual protections from AI technology providers, maintain records of human contributions to creative work, and avoid using a person's name, image, likeness, or voice without express permission. Broadly, they said, brands should combine AI's speed and scale with documented workflows, substantiated advertising claims, and meaningful human oversight.
Want to learn more? Watch the full webinar recording and visit our AI, IP, Advertising and Marketing, and Automatic Renewal Law (VAST) service pages to learn more about how we can help you manage AI risk in marketing your brand. Want to chat with our speakers directly? Contact Justin Pierce and Shahin Rothermel with questions.