At Loeb’s AI Summit in New York last week on Feb. 11, I had the opportunity to moderate a cross‑industry roundtable about intellectual property. The event brought together attorneys from entertainment, media, tech and publishing companies. There were some themes that applied across industries, such as drafting AI vendor agreements to retain ownership of any AI generated outputs that were created using our company’s content, and to build in audit rights and indemnification safeguards. There were also a number of issues discussed that have particular salience for companies in the entertainment, book publishing and journalism industries. Here are some of the key takeaways from the discussion:
- Keeping humans in the loop: Treat AI as a tool, not an author. Anchor projects in human ideation, selection and final creative judgments, and retain documents evidencing each step of the creative process. This will not only protect human creativity, but also help ensure copyrightability of expressive content created with the assistance of AI tools.
- Blocking web scrapers: Companies who publish content online, even those who protect their content behind paywalls, expressed concern about AI-powered bots scraping their content and using it to train new AI systems and to power RAG (retrieval augmented generation) features of existing AI platforms. We discussed pairing technical controls, such as robots.txt directives, rate‑limiting and bot detection/CAPTCHAs, with legal/contract controls, such as clickwrap terms that ban scraping/training, allow for access revocation and grant the publisher audit rights.
- Keeping tabs on litigation developments: The federal courts have begun to decide infringement cases involving unauthorized uses of creative content to train AI systems. While the training itself has been found fair use in some instances, there has been renewed attention on illegally downloading or scraping content, and courts have allowed claims based on allegedly infringing outputs to proceed. Staying up to date on these court rulings can help both content and AI companies better understand the leverage they may have in licensing negotiations, and consider the risks or opportunities of potential claims.
The roundtable highlighted both the shared priorities and industry-specific challenges companies face as AI transforms the IP landscape. As legal frameworks continue to evolve, proactive contract terms, robust technical defenses and close attention to litigation trends will remain essential for protecting creative assets and positioning companies to navigate the opportunities and risks of AI adoption.
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