Navigating the Legal Landscape of AI in Advertising | Gordon Firemark

David McBee: Hello and welcome to Simpli.fi TV. I am David McBee. Our guest today is Gordon Firemark. Gordon has practiced media, entertainment, and business law since 1992 and is often referred to as the podcast lawyer, a podcaster himself. He's been producing and hosting the Entertainment Law Update podcast since 2009 and more recently, Legit Podcast Pro in which he shares legal tips, strategies, and advice for podcasters and live streamers. Gordon is the author of the Podcast Blog and New Media Producer's Legal Survival Guide and creator of several online courses for creatives. Gordon, thank you for joining me today. Gordon Firemark: David. It is great to be here. Thanks for having me. David McBee: Let's start the show by helping the viewers of Simpli.fi TV understand why I invited an attorney to a show about advertising and media. And this is it, you practice media law, correct? Gordon Firemark: Well, yeah, media, entertainment, business, it's all tied in. It deals with the intellectual property, the deals, the contracts, and the compliance with the regulations, the FTC rules and so on. Some of the things we'll be talking about today. David McBee: Well I thought, okay, how is that relevant to an audience of agencies and media people, and I immediately thought about artificial intelligence. Because agencies are using it to write blog articles, to make creative briefs, and in some cases they are leveraging AI art to create display ads and video ads for streaming television. So knowing that AI uses content originally created by humans, what are the legal ramifications to agencies and their advertisers who are using AI? Gordon Firemark: Well, David, AI is, this is very, very new technology. So when you ask a question about what's the law around AI, in some ways it's early to say. Now, so what we end up doing of course, is relying on analogy to prior situations and things like that, but the AI technology has started to rear its ugly head in the legal, I should say the legal side has reared its ugly head in the AI community, specifically with concerns around things like privacy. This is a technology that is based on using a lot of data and where that data's coming from and how it's being used, and whether the people who are the subjects of that data or the creators of that data have consented to all this. These are some of the kinds of concerns that we have on that front. David McBee: So what about on the creative side? If I go to ChatGPT or DALL-E and create an ad that includes imagery that was originally done by an artist in Australia or whatever, and then I end up advertising with that, what are the ramifications there? I know you don't know the answer, but what do you predict? Gordon Firemark: Well, there are some intellectual property issues around that, and obviously again, where did you get the source material that was used in creating this AI material? That there are a few lawsuits going on right now by some of the larger stock photo and photography representation agencies saying, "Hey, you made these tools by ingesting all of this copyrighted information. We never gave you any consent or permission to do that. In fact, we sell that stuff. You didn't pay. You're infringing our copyrights." Likewise, I've actually seen some AI generated art that incorporated trademarks that belong to fashion companies and health brands and things like that, that were not intended to be there. It wasn't part of the prompt, it just was some of that source material found its way in. So creators really need to be careful and thoughtful about that. And the same is true with the text material. If you use an AI copywriting tool or something, you might get chunks of information, chunks of content that actually aren't originating with the AI. The test for copyright is originality is what's protectable. And if it's too similar to something that has gone before, that could be infringement as well. The other side of the intellectual property concern that creatives ought to be thinking about is that when you use an AI technology to make something, you don't own it. You can't own it. It can't be protected by copyright because the courts and the copyright office have already been saying, got to be a human author. And the question is, well, how much human authorship is necessary versus how much intervention by technology takes it out of that realm of copyright? So if you're working for an agency and you're being hired and paid oftentimes tens of millions of dollars to make this thing, and you go out and use an AI and make it, someone else could come along, grab that thing and start using it, and your brand that you're representing would be sort of out of luck. There wouldn't be any recourse for them. So that's the other side of this. Be really careful when you're using these tools to keep the human hands on it as much as possible. David McBee: That's incredibly eye-opening. I wouldn't have even thought of that. So thank you for sharing that. So what do you predict is going to happen with the law and AI? Gordon Firemark: Well, I think we're seeing just the beginnings of the snowballs running down the hill and they're going to gather speed and momentum and size, and it's going to become an avalanche of legal battles before too long. I think the courts are going to really be grappling with this for quite a while and trying to draw those lines that I was talking about, about how much AI is too much to get you protection. We're also going to see things like questions about the bias coming into play because these tools are only as good as the source material and the programming they received going in. And I've already seen some of the images coming out of it. There's a seems to be a bias in favor of faces that look a certain way and skin tones that are a certain way, unless you very carefully specify you're going to get a white or an Asian looking face on a person and stylistic things are going to be biased by the culture from which these technologies can come. And just like in the rest of society, there are underrepresented groups in that space. Another issue that's coming up a lot is labor. Right now the Writer's Guild of America is on strike against the motion picture and television industry. One of the big contentious issues in that strike is the use of AI technology in the screenwriting process. And the big companies want to be able to use these tools and the writers want to protect their jobs. So they don't want AI replacing them again, because then it takes away from not only their job but their credit and the way they're compensated and those kinds of things. So those are other issues. There's also issues around the consumer protection. As I mentioned earlier, the regulation, the FTC rules require truth in advertising, accuracy, not misleading the consumer. All of those things can happen very easily with AI there. There's currently a lawsuit just as an illustration of what can happen. A person, I think it's a lawyer, is suing ChatGPT because some journalist asked it for information about a particular case. And the folks in the technology world refer to this as hallucination. The AI made up a story about the lawsuit. It got all of the facts wrong about the suit. It named this person who had had nothing to do with either of the parties in the suit or any of the claims as a major player. It actually made statements that he was alleged to have committed a crime. So that's liable. Now, big questions in the legal community. Well, who do you sue when it's a machine that said it? But is the parent company liable? Those kinds of things. So if the machines can hallucinate that way, you can see easily how it's possible that if you ask a machine to, either an image or a text generating machine, if you ask the AI to create something that will become an ad, you've got to be super careful that there's nothing false, inaccurate or misleading in there. And right now the machines are just not there. So that's another big concern. David McBee: Great stuff. I knew this was going to be great. You weren't a perfect fit because you're a lawyer and that's kind of out in left field, but dang, it was a perfect interview, so thank you so much. Gordon Firemark: Oh, sure. Well, look, the creative community and the business community come together in advertising, and anytime you have those kinds of convergences or clashes, law comes into play. So lawyers do play a role here. David McBee: There's a place for a lawyer everywhere. Gordon Firemark: Yeah. David McBee: Well anyway, in our last few seconds, if you wouldn't mind, just do you think that you could share a podcast or a book that has been instrumental in your success? Gordon Firemark: Instrumental in my success? Wow. That's kind of hard. I'll tell you that one of the podcasters that I follow a lot is a guy named Pat Flynn. He has a show called Smart Passive Income, and he talks not just about how to make money online, but all of the kinds of business issues that come up in there as well. And just a really interesting, thoughtful guy who always has something that gets you thinking about things. David McBee: All right. Well, thank you, and thank you for being on the show today. I appreciate you. Gordon Firemark: Thanks for having me, David. It's been a pleasure. David McBee: And thank you guys for watching. Simpli.fi TV is sponsored by Simpli.fi, helping you to maximize relevance and multiply results with our industry leading, media buying, and workflow solutions. For more information, visit Simpli.fi. Thanks for joining us today. I'm David McBee, be awesome, and we'll see you next time.