One of the hottest topics in digital marketing in 2023 has been the rapid evolution of Artificial Intelligence (AI) across virtually every channel. In particular, it’s been generative AI that has caught every marketer’s attention. Its ability to rapidly create content and deploy it on a website, landing page, email creative, or other medium has made one of the more time-consuming and challenging aspects of marketing (writing content) much more scalable. 

But, as with every new technology, generative AI has also brought with it a multitude of questions about how to best use its capabilities and what some of the legal ramifications are of ‘teaching’ an AI with copyrighted content. Additionally, the digital marketing industry itself is grappling with how to create guidelines for how AI-generated content can or can’t be used in affiliate marketing and other channels. So, here are 4 things to consider when it comes to email compliance when using AI in your email marketing programs in 2023. 

1 – Affiliate Program Rules

It’s not a law, but affiliate networks and companies with affiliate programs all set up rules that their affiliate partners need to follow in order to market their offers. Typical rules include not bidding on branded search terms or only using advertiser-approved creatives. However, a new guideline that many advertisers and networks are now discussing or implementing involves the use of AI-generated content. 

In some cases, the use of generative AI to create marketing copy or other AI tools to design images is being scrutinized and possibly banned for use by affiliates in some programs. As an advertiser, the key is to determine whether you want affiliates to be able to avail themselves of AI content creation tools when marketing your offers and then setting clear guidelines for if and how such content can be used. For affiliates, make sure you read the campaign guidelines so you can focus on email compliance before using Chat GPT to create all the copy for your next email marketing campaign. 

2 – Is it Copyright Violation or Plagiarism?

One of the major areas being discussed and litigated in the second half of 2023 regards how various generative AI tools are ‘taught’. Essentially, an AI like Chat GPT or Bard, is trained to understand and create content by ‘reading’ vast amounts of existing content and using that as a basis for writing ‘new’ content in response to prompts from users. It’s not an exact analogy, but think of all the books, news articles, flyers, product reviews, Google search results, and anything else you’ve ever read. All of that info was taken into your brain and now when you write original content, you are leveraging all that information. When a human being does this, we simply think of it as building your life experience. But, for AI there is a real question of whether or not feeding it content, written by others, without their permission, for the sole purpose of teaching it how to create ‘similar’ content, is a form of copyright infringement or even plagiarism.

There is no easy answer to this question and eventually court rulings will start to clarify the legal perspective. But, any marketers who are using generative AI tools should be aware of these cases as they move through the legal system, as they will have a major impact on how AI can access data in the future. 

3 – CAN-SPAM 

Hang on a second. How does AI-generated content relate to CAN-SPAM compliance? Remember that the CAN-SPAM Act outlines rules for email compliance regarding content, as well as providing an opt-out mechanism and honoring unsubscribe requests. Specifically, CAN-SPAM prohibits the use of ‘deceptive subject lines.’ Similar to other marketing laws which also prohibit the use of various types of deceptive copy, subject lines should accurately reflect the contents of the message. 

Just because an AI wrote the subject line or other marketing copy in question if it violates either CAN-SPAM or any other law or FTC regulation regarding deceptive advertising then the marketer could be held liable. So, remember that the same rules that apply to marketing content you create yourself (or that you hire someone to create) apply to AI-generated content, as well.

4 – Content Ownership

One last aspect to consider when it comes to the content written by generative AI is ownership. Currently, the major generative AI tools include language in their terms & conditions that state the end user owns the content the tools create for them. However, there are some AI content tools that may state something different – such as that the software company that built the AI shares ownership with the end user. 

Before using an AI platform to help you create marketing content for that next email campaign, you should make sure you know who retains ownership rights to any content you get from the platform. 

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