The value of intellectual property is exponentially increasing as social media and AI continue to transform modern society and commerce. IP protection and enforcement are now, more than ever, high-stakes endeavors. Billions are on the line, and more importantly, reputations and brands. With a single post, or AI’s generation of an image, millions in IP-value and years of building a brand can be jeopardized.
New York-based lawyer Nick Saady has witnessed the rapid and explosive growth of the modern wave of global stars and brands, from prominent music artists, to social media influencers and international athletes, to sports leagues and fast-growing startups. He has also experienced the way in which social media and emerging technologies have reduced international barriers and revolutionized the legal and business issues confronting his clients.
Originally from Australia, Saady’s story is itself a product of the globalization of commerce. Being drawn to New York by an NYU Law scholarship, Saady now finds himself on the front lines of the battle to protect IP, amidst the proliferation of AI and the ubiquitousness of social media.
IP can now be almost limitlessly exploited. There are so many platforms and new features within them that allow individuals and brands to post unique, engaging content and monetize the same. This includes traditional social media such as TikTok and Instagram, and more recent innovations like VRChat, Horizon Worlds, Patreon and Substack, which allow creatives to offer exclusive and subscription-based content as well as personalized interactions both in-person and in virtual worlds. Digital collectables powered by blockchain technology remain popular, despite the drop off in the NFT market.
Interactive live streaming platforms such as Twitch are also creating millions of dollars’ worth of new opportunities and new issues because of the impromptu ways in which content is published and statements are made. More conventional forms of exploitation such as content licensing are amplified because of the sheer number of social platforms, while newer avenues such as licensing celebrity likenesses and voices in video games and AR applications are becoming more widely adopted.
AI has also provided new opportunities to generate, alter and scale content to advertise and sell products to consumers. With the click of a button, or a voice prompt, high-quality written content, images and even audio can be generated and tailored to specific consumers. AI can also create highly realistic avatars and personas, which can interact with fans without human input, exemplified by Meta Platforms’ AI Studio, a tool that lets creators make AI chatbots of themselves.
Saady explains that such development has created gray areas in the law, particularly around platforms’ legal responsibility and the application of existing laws, such as copyright laws and rights of publicity. These gray areas have heightened the importance of obtaining proper advice and implementing safeguards to protect creative output.
“In this environment, it is important to surround yourself with people that understand the value of your IP and how to strategically create, exploit and protect it. This is especially because we are unlikely to see significant regulation of AI or social media any time soon. The global regulatory process with respect to AI has been painfully slow, amidst fierce lobbying, the vicissitudes of legislative processes, and concerns about stymying innovation. Court cases also have to play out, with little guidance emerging to date because the parties in major AI cases have battled over motions to dismiss and procedural issues which have not produced much definitive guidance,” Saady says.
At the music, entertainment and sports powerhouse, Pryor Cashman LLP, Saady deals with the most complex of these kinds of issues for prominent businesses and individuals, ranging from high-profile litigation and sensitive investigations to significant international transactions and IP prosecution. Saady and Pryor Cashman helped bring the first two seasons of Major League Cricket to life, being the first commercially successful venture of the world’s second largest sport into the U.S. They are guiding various acclaimed music groups in protecting and monetizing artist IP, as well as international recording artists and record labels with respect to commercial, litigation and IP issues. Saady also acts as outside counsel to global influencers, with millions of followers and equivalent revenue, as well as leading college and professional athletes.
Because of the almost limitless ways to now exploit IP, and the ease by which this can be achieved, Saady references an unprecedented level of legal action in the IP space. There is a growing list of cases involving the use of AI, most at their core alleging infringement through the ingestion of creative output and generation of AI works. These cases are likely to shape the guardrails for how AI companies can use such creative output and how they compensate creatives for the same. Social media is also rife with problematic AI content, particularly deepfakes and AI-generated images, recently illustrated by Taylor Swift’s fake nudes and fake endorsement of Donald Trump for President. AI-generated sound and voice cloning, seen in the public quarrel between Open AI and Scarlett Johansson, are also posing significant issues for creatives.
All of these issues have the potential to detrimentally impact brands and stars. For example, unauthorized and fake content poses immense risks to reputation and consumer goodwill, especially if such content is believable (which much AI content now is) and contrary to the ethos or identity of a business. It may lead to the loss of collaboration opportunities, impair the ability to control the nature and quality of online material, as well as raise questions about ownership and originality. Viral fake content may also require engaging crisis PR professionals to manage brand impact and counter false narratives. AI-generated content can also directly alter creatives’ revenue streams, shown by a recent case in New York where a man was charged with music streaming fraud allegedly committed using AI.
Drawing upon his varied experience, Saady states that to reduce risks in this contemporary landscape, rights owners should ensure they have comprehensive protections for trademarks and copyrightable content, as well as safeguards in contractual agreements to protect IP and control its use. Worldwide IP monitoring programs and utilization of new applications and content tools can help detect and deal with infringement. Saady adds that “owners of valuable IP must be active and aggressive. They should retain fearless and intelligent advisors to vehemently enforce their IP rights and send public messages that violations will not be tolerated, regardless of whether infringers are behemoths or individuals. There is far too much on the line to be reactive.”
