Despite the AI boom, influencer brand deals are largely being written without clauses related to AI, intellectual property and copyright, which could leave creators and brands exposed, IP lawyers say.

At least five creators (ranging in follower size and content type) Digiday spoke with confirmed no such clauses have been added to their brand deals this year. Those clauses could include usage rights limiting a brand’s ability to use a creator’s synthetic name, image and likeness, or curbing creators’ AI tool usage in creative assets without disclosing use.

“It’s strange to me how little my clients are talking about it,” said Danielle Wiley, CEO of influencer marketing shop Sway Group. “Especially now, all of this content is now being fed into the models, and it’s so important for [the] search engine.”

Creators have largely shrugged off AI’s potential impact to the influencer marketing industry and creator economy, banking on AI-generated creators inability to replicate their audience connection. Influencers and creators seem to be largely relying on pre-existing agreements that already include language for usage rights under name, image and likeness, according to Joseph Lawlor, an advertising and IP lawyer with Haynes and Boone corporate law firm.

Synthetic apps threaten IP rights

However, synthetic apps like Sora have added a new layer to the AI landscape. AI video apps promise near-instant, realistic video, which could be a big get for cash-strapped, content hungry brands.

Some agencies are bracing for the potential fallout. For example, about two years ago, Sway Group started using contractual language to prohibit deepfakes in content creation. Brands have already started to include clauses that prohibit influencers from using generative AI in content creation posted on behalf of a brand deal, per Lawlor. (He did not list which specific brands or clients have such clauses.)

“At the very least, brands should push for transparency around the use of AI — but better yet, guidelines around its use, or the prohibition on the use of generative AI,” he said.

Meanwhile, Influencer Marketing Factory’s co-founder and CEO Alessandro Bogliari said it’s something the agency will consider going forward to protect the agency from undisclosed synthetic, AI-produced work.

“We should absolutely start putting something about: ‘it has to be you in front of the camera, you cannot recreate yourself,’“ he said. He added, “Maybe if you do, for some reason, it would be disclosed as AI generated.”

For all the hype, AI is still uncharted territory in terms of legal and future implications, said Steven Stein, partner in Greenberg Glusker’s Entertainment Litigation and Intellectual Property Litigation Groups. Much of the decision making is being played out in court. Back in June, Disney and Universal filed a lawsuit against AI photo generation company Midjourney over copyright issues. Legal battles date back to 2023, when The New York Times moved to sue OpenAI and Microsoft over copyright infringement.

At the same time, tech platforms are paying creators to license content and train AI models. Back in 2023, Meta was reportedly shelling out as much as $5 million to use an unnamed creator’s likeness as an AI assistant, according to The Information. Just last week, Semafor reported AI companies are paying thousands of dollars to license creator content to train video generation models.

“These people are creating copyrightable materials — videos, films,” Stein told Digiday. “What is happening is there creates an existential threat to content creators…”

Hence, why copyright laws exist, he noted. With market forces though, or lawsuits, agency execs and legal experts expect a challenge to the current status quo around AI, IP and copyright in the creator economy.

Or as Bogliari puts it, “There are so many implications. So all just to say that it’s chaotic.”

*— Krystal Scanlon contributed to this report. *