Use of AI tools and stock images by designers in outsourced works: beware of IP implications!

The further developments of software design programs such as Adobe or Canva, alongside the rise of Artificial Intelligence, have revolutionized the creative industry. These technologies have provided design professionals with a magnificent tool that boosts their efficiency, facilitating difficult or time-consuming tasks while also offering creative inputs that enhance their abilities and creations. As a result, design professionals can now deliver high-quality work more efficiently, often with fewer resources and less time.

As many technological developments, these tools can however have their downsides, and they can even be exploited for unethical or fraudulent purposes to deceive consumers. For example, some design agencies and freelancers can at times deliver works generated by AI tools or copied from standard samples. Regardless of the ethical aspect of such practices, the use of generative AI tools by designers and content creators can give rise to intellectual property related issues linked to originality, licensing, and ownership. 

To illustrate the growing concerns around AI-generated content and unethical practices in the design world, here are two examples:

• Castilla y León "Excelente" logo: In 2022, the autonomous community of Castilla y León in Spain commissioned a logo for a touristic campaign promoting the region. The logo design was found to be almost identical to a stock image known as “sparking backlash”. This controversy raised questions regarding the originality of the design or if they simply used a template or unlicensed material from a stock image website. Ultimately, the local government decided to remove the logo and not use it after it was confirmed that it had been taken from a stock image website[1].

• Boris Eldagsen's AI-Generated Image Winning a Prize: In 2023, artist Boris Eldagsen won a prestigious photography award with a picture entirely created with AI tools. After receiving the prize, Eldagsen revealed the truth refusing the prize[2], and created a debate on whether AI-generated art should be eligible for such awards on alternative prizes. The case raised concerns about the ownership, originality, and ethical implications of AI-generated work being passed off as human-created, especially in creative fields like design.

Boris Eldagsen's AI-Generated Image

When outsourcing to designers the development of new content or logo, one new concern is how you can protect yourself from falling victim to AI scams in the creative industry and ensure that the logo or work delivered is original and complies with your expectations. The most efficacious tool for this is the contract which you sign with the designer to whom you outsource the work, which must include clauses that inimize risks or at least to be legally entitled to break the contract and recover the money you invested in case the designer does not respect these conditions. Below, we outline two key clauses which represent two different approaches that you can incorporate into your contracts with the designers to safeguard your interests.

1. Originality Commitment Clause

One of the most important protections you can put in place is a commitment from the agency to deliver original work, in the sense that it has not been copied from a preexisting works. 

Including a clause that requires the agency to guarantee the originality of the work—and to be fully responsible for any infringement of intellectual property rights—is vital. This clause should also outline that the agency will not use pre-made assets from stock image banks or templates unless they have secured the proper licenses. Note that most stock image banks do not allow the reuse of their content for the creation of trade marks, even when they can be used freely for commercial purposes – in other words, any trade mark which includes such element is in principle not protectable.

Sample default Clause (which should be adapted to your specific needs and situation): 

"The Agency agrees to provide an original work (as defined by the national laws of **country**)and shall be solely responsible for any claims of plagiarism or unauthorized use of third-party assets. The Agency further guarantees that no images, designs, or other creative elements shall be used without the proper licensing and permissions from the relevant copyright holders."

By including this commitment, you hold the agency accountable for the originality of the work they produce for you. If they deliver something that turns out to be a copy or violates intellectual property laws, they should be liable for any consequences.

2. Responsibility for AI-Generated Content and Licensing Clause

Used with professionalism and good faith, AI tools can be a great resource for the designers creative work, it is not automatically bad that they use it to enhance their productivity. Since AI-generated work might incorporate elements from various data sources, including images, text, and other content that may not be fully licensed, it is important to ensure that the agency takes full responsibility for securing the appropriate licenses for any AI-generated content used in your project.

This clause should clearly state that if AI tools are employed in the creation of the work, the agency is responsible for arranging and securing all necessary licenses for any materials used. This includes licenses for any data, software, or intellectual property generated or use by AI tools during the creative process.

Sample default Clause (which shall be adapted to your specific needs and situation): 

 "In the event that Artificial Intelligence (AI) tools (including similar systems) and existing images and stocks are used in the creation of the deliverables, the Agency agrees to secure all necessary licenses, permissions, and rights for any third-party assets or content utilized in the AI-generated work. The Agency shall indemnify the Client from any claims related to intellectual property violations arising from the use of AI-generated or stock content."

Moreover, clauses of Breach of contract for non-performance when the work has been created used stock images or AI tools without the consent of the client may give the customer the right to claim back payments made and additional damages.

In conclusion, stay ahead of unethical designers by incorporating the mentioned clauses into your contracts. With this action you create a stronger foundation for protecting your business from scams or unethical practices. You ensure that the work you receive is original, licensed, and fully compliant with intellectual property laws. This will not only safeguard your company’s reputation but also ensure that the logos, designs, or other creative works you receive are unique and commercially exploitable.

[1] https://www.eldiario.es/castilla-y-leon/politica/junta-retira-marca-cas…

[2] https://news.artnet.com/art-world/boris-eldagsen-photography-award-sony…