Practical Implications of Using AI in Business

Nancy Mertzel
Sep 30
3 min read

warner v nealy supreme court case — Photo by Matheus Bertelli via Canva

As AI use becomes even more prevalent and considering recent conflicting rulings on infringement, it’s essential for business owners to understand the risks. AI platforms can provide exceptional efficiency in creating content, from drafting marketing materials and business plans and writing computer code, to creating graphics for new products. Read on for an overview of the practical implications of using AI in business.

No Copyright Protection

One of the biggest risks of using generative AI in creating content for business is that, at least in the United States, there is no copyright protection absent human authorship. This means that AI-generated output that is based solely on user prompts will not be protectable, regardless of the sophistication of the prompts. The human contribution must be more than instructions given to an AI engine. The final creative work must reflect the contribution of creative expression by humans in order to be eligible for the benefits of copyright protection.

The Copyright Office has addressed the copyrightability of AI-generated works in its reviews of copyright applications and its updated policies. As we previously explained, in a well-known decision from 2023, the Copyright Office refused to grant copyright protection to the AI-generated images in the book titled “Zarya of the Dawn” due to the absence of human authorship in the images. More recently, this past March, the US Court of Appeals in DC ruled in the Thaler litigation that a computer system could not register a work it generated since the computer system was not a human author. Additionally, the Copyright Office is now corresponding with applicants, asking them to expressly confirm their work was authored by a human and to specifically identify portions of the work that were human created. For more information about the Copyright Office’s views on AI, read the Copyright Office’s March 16, 2025 Guidance or Part II of its Report on Copyright and Artificial Intelligence.

This does not mean that all works created using generative AI are disqualified from copyright. If a work contains both human and AI-generated content, it can be protected so long as there is sufficient human authorship. Similarly, a work that consists of AI-generated material can be protected as a compilation if it is the result of a human selection and arrangement. Generative AI programs can also be used to edit, revise and re-arrange content. When used to refine or add to human generated content, generative AI will not preclude copyright protection

Additional Risks

In addition to lack of copyright protection, using generative AI can also lead to risks of copyright infringement, trademark infringement, trade secrets issues, and privacy concerns. Some generative AI products train themselves on user prompts and content. Be aware that entering prompts onto generative AI platforms could compromise your own or a client’s proprietary information or lead to the weakening of trade secrets. Other products may retain or delete user input according to shifting company policies or version-specific settings of the platform you are using. Additionally, AI-generated logos and trademarks could be based on images that were uploaded to the Internet without the owner’s permission, creating potential risk the generated output infringes a third party’s rights. All AI-generated content should be thoroughly vetted to avoid these issues.

Takeaways

If you are using AI in your business, carefully review the terms applicable to the version of the program you are using, and your privacy settings. Consider using generative AI programs that are trained solely on content that was licensed, such as those certified by the nonprofit Fairly Trained, and those that provide indemnity for users against third party legal action models, such as certain licensed versions of Adobe Firefly.

It’s generally a good practice to retain evidence of your creative process, including previous versions of your documents and designs, as they may help establish independent creation. This is particularly true if you use generative AI to contribute to your content; these records could be helpful in the event you choose to pursue a copyright registration in future or need to defend yourself against a claim by another party.

Feel free to contact us if you have questions or would like to discuss potential risks associated with use of generative AI in your business.