And to think the argument started with monkeys.
It may not work the way you think!
SOURCES
https://www.plagiarismtoday.com/2024/06/11/success-kid-copyright-fair-use-and-memes
https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute
https://www.vanityfair.com/hollywood/story/who-owns-ai-intellectual-property
https://www.vice.com/en/article/monkey-selfie-david-slater-peta-lawsuit-movie-vgtrn/
https://www.bbc.com/future/article/20260414-the-monkey-selfie-that-predicted-the-ai-age
https://copyrightlately.com/thaler-is-dead-ai-copyright-questions
https://imagination-engines.com/founder.html
David J. Slater’s gallery – http://www.djsphotography.co.uk/Welcome.htm
http://www.djsphotography.co.uk/Tropical%20Forests/Sulawesi%20Macaques.htm
The Marketing Gateway is a weekly podcast hosted by Sean in St. Louis (Sean J. Jordan, President of https://www.researchplan.com/) and featuring guests from the St. Louis area and beyond.
Every week, Sean shares insights about the world of marketing and speaks to people who are working in various marketing roles – creative agencies, brand managers, MarCom professionals, PR pros, business owners, academics, entrepreneurs, researchers and more!
The goal of The Marketing Gateway is simple – we want to build a connection between all of our marketing mentors in the Midwest and learn from one another! And the best way to learn is to listen.
And the next best way is to share!
For more episodes: https://www.themarketinggateway.com
Copyright 2025, The Research & Planning Group, Inc.
TRANSCRIPT:
OK, so before we get started – spoiler alert! Today’s episode is going to make a monkey out of AI art. And I mean that quite literally!
But first, let’s talk about something else: internet memes. And more specifically, who owns them.
So you may have seen this “Running Away Balloon” comic in the form of a meme where a smiling gray cartoon character is chasing after a yellow ball labeled “opportunities”, but then , in the next panel, we see he’s being held back by a similarly kind-looking pink blob labeled “shyness.” It’s a cute, resonant comic created by Elmer Saflor, also known as Superelmer, a Philippines-based artist who say it came from a deeply personal place and he’s happy it’s found traction… as a popular internet meme, where it’s being distributed freely and noncommercially among netizens.
But what he’s not happy about is the potential for AI companies selling products to digital advertisers to use his comic in a manner that allows paid users to receive copies or derivative works generated from his art. He’s suing one such company, Memes Apps, that operates content creation platforms Memes.ai and Memes AI Studio, in the hopes of producing evidence during discovery that his rights have been infringed.
This is messy stuff because the problem rests in copyright. There’s no question that Superelmer owns the original work. Memes are considered fair use, but derivative works that aren’t parody or substantially different could be infringing on his copyright to the original.
The problem here is twofold. First of all, is AI-generated content that uses a meme in its training data creating a derivative work? That hasn’t been definitively decided yet in US courts, let alone elsewhere in the world, and so the interpretation has been that if an AI program creates something distinct and then a human being improves on it, that improved work is copyrightable as its own work.
But again, this ignores the fact that AI is not actually creating something new, but rather is interpreting prompts and referencing training data to create work that’s based on things that probably are copywritten.
The other problem is whether or not a meme itself is copyrightable, and this is a huge problem that did receive a decision in 2024 that pretty much said, “yes.” In 2024, the Eighth Circuit Court of Appeals upheld a jury verdict about the “Succes Kid” meme, which features an 11-month-old boy named Sammy pumping his fist while he’s standing on the beach.
The photo itself is owned by Sammy’s mother, Laney Grinier, and while it’s been one of the most popular and recognizable memes on the internet for the last 15 years, the court case found that using this meme in advertising – in this case, political ads for former Representative Steve King in Iowa – is not fair use.
And according to an article you can read in the show notes from the website Plagiarism Today, that case established a precedent that noncommercial use of memes featuring photos or creative content is OK, but commercial use without permission or license from the copyright holder is not. Transformed works may be protected if they’re clearly distinct from the original creation, but with a meme, it’s pretty hard to transform the original content without losing recognizable meaning.
Now, look, I’m not a lawyer. I’m a marketer. And I know it’s difficult to know where the line is these days, especially with AI tools. But I think it’s a good idea for us to take a quick look at copyright regulations and guidelines for AI-created content and what it may mean for advertisers who use AI to market their businesses.
I’m Sean in St. Louis, and this is the Marketing Gateway.
So the issue of whether or not AI can be granted copyright actually goes a bit further back than you might realize, and it doesn’t involve machines at all, but rather, monkeys.
Basically, the story is that a British wildlife photographer named David J. Slater allowed some Indonesian macaques to use his camera to take selfies that he licensed for publication through a news service in 2011.
Several news organizations carried the story, and a volunteer editor at Wikimedia Commons, which is the media hosting side of Wikipedia, uploaded two selfie pictures that had been published via the news publication The Daily Mail. Though Wikimedia Commons doesn’t allow content that’s copyrighted to be uploaded without a free content license or because it’s in the public domain, the editor’s argument was that these pictures weren’t taken by a human and therefore couldn’t be copyrighted.
This led to a lengthy legal fight between Slater and Wikimedia Commons as well as the website Techdirt, which also published the pictures as public domain media and challenged his copyright claim. The United States Copyright Office published an opinion in 2014 saying that works created by humans were the only ones eligible for copyright, and works created by animals, nature, plants or machines with no human intervention were not. They were specific in this statement, too, that monkeys are not eligible for copyright.
Then things got really weird. Slater self-published these photographs in book called Wildlife Personalities in 2015 and PETA – the People for the Ethical Treatment of Animals – filed a lawsuit against hm for violating the monkey’s copyright. They named the monkey Naruto and thus the case Naruto v. David Slater appeared before the United States Courts, first in District Court in 2016 and then on appeal in 2017 in the Ninth Circuit Court of Appeals. In both circumstances, the courts determined that animals cannot legally hold copyright.
The courts also basically said that PETA was wasting their time with a frivolous lawsuit and suggested they were doing this more as a publicity stunt than considering it a serious case. What can I say? PETA is great at figuring out how to capitalize on controversy.
But it definitely made the case more public and, as we’re about to see, established a surprisingly important precedent. Slater has also said that the years of drama took a toll on his health and career and also impacted his original, kind-hearted intention of bringing attention to plight of the Celebes crested macaques in Indonesia, which are now known colloquially as the “selfie monkeys.”
Apparently, some good came out of this too. The monkeys now attract tourists who want selfies with them, and that’s been a net positive for the locals and the monkeys. He did get a movie deal out of all of this, which I don’t think has ever moved forward, but he also has since found his name being mentioned whenever people talk about whether or not works produced by generative AI are copyrightable.
He’ll forever be a footnote in the broader story of man vs. AI, and I hope he can find a way to capitalize on that, because he’s an amazing photographer.
I’ve included a link to his online gallery if you want to see it – there’s some really gorgeous stuff.
But all of this goes to show that life is very weird and you never know what twists and turns are ahead for your personal legacy.
I want to add that I personally have a lot of sympathy for David Slater because he put a lot of work into setting up those photographs, and the legal distinction for him was which organism pushed the button.
For AI, it’s a little bit different, because AI platforms are not autonomously creating selfies of circuit boards. They’re being prompted by humans, referencing training data sourced from potentially billions of individual human creations, and then creating output using probabilistic models. It’s not the same thing as befriending a macaque and getting it to press a button to take a selfie during a photo shoot session.
But Slater’s situation does set a precedent that if a work is not specifically created by a human, it’s not copyrighted. The only way it’s copyrightable is if a human being takes that creation and modifies it.
Yet this is also a dicey situation, because the AI training data is probably already infringing on copyright – it’s going to take years for courts to decide if any of this is “fair use” or not – and the human modifications that are required are sort of nebulous as well.
Can an AI-generated image become human-authored and copyrightable if someone crops it and slaps a logo or some text over it? Presently, the interpretation is that the image itself is not copyrightable but the rest of the elements are.
But a court case could change that.
And AI video or music could be even more problematic if courts decide that human editors have to do a certain amount of editing or modification to be able to claim a work is authored by them and not the AI program.
I imagine this’ll all probably get decided when an AI-produced film or music track is up for an award somewhere, but we really don’t know where any of this is heading until that happens.
One case that looked like it might get a ruling from the Supreme Court was Thaler v. Perlmutter, a case with a curious connection to St. Louis! Well, St. Charles, actually, but the Thaler in that case is Dr. Stephen Thaler, an inventor and scientist who can only be described as an extremely outside-of-the-box thinker.
On his own website, he takes credit for using neural networks for all sorts of applications during the last few decades, including near death experiences, metal illness and creativity. He developed his own AI system called DABUS, or “Device for the Autonomous Bootstrapping of Unified Science”, and he’s challenged the legal system by attempting to file for intellectual property ownership by DABUS, specifically for two patents and the copyright to a digital painting at the center of the Thaler v. Perlmutter case called “A Recent Entrance to Paradise.”
Dr. Thaler appealed his case all the way up to the Supreme Court, but they decided not to hear it and affirmed the unanimous ruling of the U.S. Court of Appeals for the District of Columbia that AI cannot be granted copyright because it’s not human.
Other court cases like Allen v. Perlmutter have challenged whether images created by Midjourney can be copyrighted due to the fact that they require extensive prompting. The US Copyright Office has said that the image itself is not copyrightable, but that a book featuring the images could itself be copyrighted even if the images are not protected.
A graphic novel called Zarya of the Dawn also posed a challenge when it was registered with the US Copyright Office in 2022 but the author didn’t disclose the artwork was created in Midjourney. Once that detail was discovered, the copyright was revoked in 2023 and the Copyright Office determined that the layout, text and other human-authored components were protected, but the artwork itself was not.
All of this creates a potentially risky situation for using AI art in advertising because it means that copyright protects some of the work, but not any of it that’s provably created by an AI platform and not a human.
If you run an ad and someone wants to duplicate it but use their own brand instead of yours, there are few legal mechanisms to stop them from doing so.
This could become really problematic if a brand wanted to launch a new product and fly by night copycats decided to launch similar products with similar branding and then used generative AI to copy the original brand’s campaign.
Proving they violated copyright could be difficult if AI was used at any point in the process, and they might also be able to make a legal claim that their similar work is not copyright-infringing since it was authored by a machine and not a human.
Another major problem could be if two very competitive brands started running similar ads to target the same audiences and it turned out that the AI tools they used produced similar output from different human prompts.
Can the brands challenge one another for infringing on copyright? Probably not successfully under the current rules, and there’d be very little legal protection to stop it from happening again.
And then there’s the issue of liability. Let’s say that someone like the comic artist Superelmer is successful in suing an AI platform that generates content used for ads and is able to find them liable for damages.
Isn’t it logical to think the next battle will be to go after advertisers who used the platform in a manner that infringed on copywritten content by prompting the platform to create media that looks like something that already exists?
At the very least, there’ll be a wave of settlements to cover the potential for liability, and that could be costly!
So, you know what I’m going to say here, right? Advertisers need to be really wary about using AI because the rules and guardrails aren’t in place yet.
My personal advice is to avoid AI entirely for now until the legal protections become clearer, but if you must use it, use AI to help speed up development and then use traditional, human-driven production on all of the ad if possible or on enough of the ad to be able to assert copyright on most of the elements.
But I’ve heard the arguments for the other side. With AI, it’s possible to shorten production from weeks to hours, and to shrink production budgets from 6 or 7 figures down to 4 or 5. This is definitely a siren’s call to creative agencies and advertising buyers who are trying to do more with less, and the temptation to use these tools to respond to the market faster, cheaper and better is going to be stronger than the desire for caution for those who like to move fast.
The progress these tools allow for is incredible. Just in the last decade, I’ve watched digital video ads for smaller clients move from glorified slideshows to fully produced commercials, and that’s only possible because technology has made it cheaper and easier to produce that sort of content.
AI makes it easier and cheaper still. With just a few source photos, an AI model can create an authentic-looking image or video featuring a business owner or spokesperson, and it’s not hard to replicate their voice from a few audio clips, either.
With AI production, anybody can be a superhero or ride around on a dinosaur or scale a building like King Kong or be a sports hero. In fact, I’ve seen one of our local studios here in St. Louis produce that sort of work for law offices.
Is it perfect? No way! But if the ad’s going up on the web or running for a short time frame to an inattentive audience, there’s also the argument of, “does anyone care about perfection when you can do things so fast and cheap?”
And yet the problem with fast and cheap is that it’s often a race to the bottom, and the lack of copyright protection, the potential for future liability and the honest to goodness problem that AI tends to look more and more like slop to everyday people the more exposed they are to it are all reasons to be cautious about using AI for advertising.
We’ll see where the court cases take us, and how the rules change over time. And chances are pretty good we’re still going to be discussing monkeys as we consider the role of AI in media production.
But until then, I’ll lead by example and keep producing my own content, like this show, on my own, with 100% human production! And as always, thanks to the very real Holly and Trish and all our awesome marketing mentors for making this show happen.
I’m Sean in St. Louis, and this has been The Marketing Gateway. See ya next time!
Leave a Reply