AI Challenges Are Pushing Artists to Secure Trademark Protection

Artists, celebrities, and brand owners are looking for new ways to protect their intellectual property—including name, image, and likeness rights—from infringement as the use of generative artificial intelligence tools continues to grow.

In January, actor Matthew McConaughey applied to register federal trademarks of iconic lines from his films, including marks such as, “Alright, alright, alright” and “Just keep livin’, right? I mean, what else are we gonna do?” While McConaughey is presumably filing these trademark applications to protect his personal brand against infringement in the age of mainstream AI, many question whether trademark law is the right tool for his efforts.

What is protectable? Trademark law protects any word, phrase, sound, logo, or other signifier that identifies one’s goods or services, distinguishes them from the goods or services of others, and indicates the source of one’s goods or services.

While there are many variations of what may be protected, including words, sounds, and colors, a mark can only be protected under the Lanham Act (and related state laws) if it’s used in commerce. Marks designed purely for entertainment or informational purposes and designs that are purely ornamental with no source-identifying capability aren’t protectable by trademark law.

An owner of a protectable trademark can federally register the mark with the US Patent and Trademark Office to gain additional benefits. For example, trademark registration confers nationwide exclusive rights to use the mark in connection with the specified goods and services, legal presumption of ownership, and constructive notice to others of the trademark owner’s rights.

What constitutes trademark infringement? Trademark infringement is the unauthorized use of another’s mark on or in connection with goods and services, in a manner that’s likely to cause consumer confusion.

Catchphrases in Art

McConaughey’s applications for his iconic catchphrases may inspire visual artists who also are known for distinctive verbal signatures or slogans within their work.

Barbara Kruger, a conceptual artist, is known for her recognizable statement “Your body is a battleground,” which first appeared in her 1989 seminal piece. This assertive text has reappeared verbatim or near-verbatim in her subsequent creations, including the 1990 Ohio billboard installation,and “Untitled (That’s the way we do it).”

Shepard Fairey is a contemporary street artist who has become synonymous with his iconography and the word “OBEY.” This word first emerged in 1996 when Fairey adapted his original sticker featuring Andre the Giant. Since then, “OBEY” has permeated his work in various formats, evolving into a symbolic element that defines his artistic universe. Fairey also founded OBEY Clothing, demonstrating how an artistic slogan can expand to a consumer brand and be used as a source-identifier in commerce—a trademark.

The cases of Kruger and Fairey demonstrate how linguistic motifs in the art world can move beyond individual works to become recognizable markers of an artist’s identity. When this happens, unauthorized use in commerce by others can constitute trademark infringement.

The AI Mismatch

Despite trademark protections, a user of an AI tool who uses trademarked materials as “input” generally isn’t committing a Lanham Act violation because such use doesn’t constitute “use in commerce” to identify the source of particular goods or services.

Similarly, the tool itself isn’t “committing” infringement by processing the input and generating an output, nor is the creator of the tool likely to be found liable for infringement under existing trademark laws. Generating content with another’s trademark as input or output likely doesn’t constitute trademark infringement by itself. To be considered infringement, a potential infringer must actually use the output containing another’s mark in commerce in a manner that would cause consumer confusion.

A person prompting an AI tool to create a logo for their company could cause the AI tool to generate a logo that’s similar to a pre-existing trademark. If the AI-generated logo is used to identify and promote their company in a manner that’s likely to cause consumer confusion, they may find themselves in the middle of a trademark infringement dispute.

Protection

Incorporating words or phrases into visual artworks often creates a powerful, memorable message that resonates with audiences. When used consistently across an artist’s artworks, editions, or installations, such textual elements become defining signifiers of that creator’s identity.

Because a word, slogan, or short phrase itself generally isn’t copyrightable under US copyright law, trademark registration can be an alternative mechanism to safeguard artists who use such words, slogans, or short phrases as indicators of the source of the artist’s goods and services, such as merchandise lines (including prints, apparel, and accessories) and brand collaborations.

Although trademark registration may not be sufficient to stop use of taglines and other trademarks as input for AI-generated works—or to stop AI tools from legally generating output containing those marks—it will be helpful in enforcement against those seeking to use AI-generated output employing these taglines and marks to identify their own goods and services in a manner that’s likely to cause confusion.

In this way, AI doesn’t itself change the trademark protection landscape. Artists will need to continue relying on intellectual property laws, right-of-publicity protections, and monitoring to protect their brands.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Robert E. Hough II is a partner at Sheppard’s intellectual property practice.

Chante B. Westmoreland is an associate at Sheppard’s intellectual property practice.

Yeeun Kim is an associate at Sheppard’s entertainment, technology, and advertising practice.

Robert Darwell contributed to this article.

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