As the use of generative artificial intelligence tools continues to grow, artists, celebrities, and brand owners are seeking new ways to protect their intellectual property rights—including rights to names and likenesses—from infringement.

In January of this year, actor Matthew McConaughey applied to register iconic lines from his films as federal trademarks, such as "Alright, alright, alright" and "Just keep livin, man. L.I.V.I.N. I mean, what else can we do?" While McConaughey may have filed these trademark applications to protect his personal brand from infringement in this AI era, many question whether trademark law is the appropriate tool to achieve his goals.

What exactly can be protected? Trademark law can protect any word, phrase, sound, logo, or other mark used to identify a person's goods or services, distinguish them from the goods or services of others, and indicate the source of those goods or services.

While protectable content can take many forms, including text, sound, and color, a mark only receives protection under the Lanham Act (and related state laws) when it is used in commerce. Marks used purely for entertainment or informational purposes, as well as purely decorative designs that lack source-identifying capability, are not protected by trademark law.

An owner of a protectable trademark can obtain federal registration with the United States Patent and Trademark Office (USPTO) to receive additional benefits. For example, trademark registration grants the owner the exclusive right to use the mark nationwide for specific goods and services, and a legal presumption of ownership.

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

Catchphrases in Art

McConaughey's applications for his signature catchphrases may inspire visual artists who are similarly known for unique language signatures or slogans in their work.

Conceptual artist Barbara Kruger is famous for her bold manifesto "Your body is a battleground," which first appeared in her seminal work released in 1989. This powerful text has appeared repeatedly, exactly or nearly exactly, in her subsequent creations, including a 1990 billboard installation in Ohio and "Untitled (It's our way)."

Shepard Fairey is a contemporary street artist whose name has become synonymous with his iconic patterns and the word "OBEY." This word first appeared in 1996 when Fairey adapted his original stickers featuring Andre the Giant. Since then, "OBEY" has permeated his work in various forms, evolving into a symbolic element that defines his artistic world. Furthermore, Fairey founded the OBEY clothing brand, demonstrating how an artistic slogan can expand into a consumer product brand and serve as a source identifier in commerce—namely, a trademark.

The cases of Kruger and Fairey demonstrate how linguistic themes in the art world can transcend individual works and become recognizable indicators of an artist's identity. When this happens, unauthorized use by others in commerce may constitute trademark infringement.

The AI Mismatch

Despite trademark protection, users of AI tools who use trademarked materials as "inputs" generally do not constitute a violation of the Lanham Act because such use does not qualify as "use in commerce" to identify the source of specific goods or services.

Similarly, the act of the tool itself processing input and generating output does not constitute "committing" an infringement, and under current trademark law, the creators of the tools are also unlikely to be found liable for infringement. Using another person's trademark as an input or output to generate content may not, in itself, constitute trademark infringement. To be deemed an infringement, a potential infringer must actually use the output containing another's trademark in commerce in a manner likely to cause consumer confusion.

When someone prompts an AI tool to create a logo for their company, it may cause the tool to generate a logo similar to an existing trademark. If this AI-generated logo is used to identify and promote their company in a way that is likely to cause consumer confusion, the party involved may find themselves facing a trademark infringement dispute.

Protective Measures

Integrating words or phrases into visual artworks often creates powerful and memorable messages that resonate with the audience. When these textual elements are used consistently in an artist's work, they become defining markers of that creator's identity.

Since words, slogans, or short phrases are generally not protected by copyright under U.S. copyright law, trademark registration can serve as an alternative mechanism to protect artists who use such words, slogans, or phrases as source indicators for their goods and services (e.g., product lines including prints, clothing, and accessories, as well as brand collaborations).

While trademark registration may not be sufficient to prevent slogans and other trademarks from being used as inputs for AI-generated works, nor sufficient to prevent AI tools from legally generating outputs containing these trademarks, it will be helpful when enforcing rights against those who attempt to use AI-generated outputs containing these slogans and trademarks to identify their own goods and services in a manner likely to cause confusion.

From this perspective, AI itself has not changed the landscape of trademark protection. Artists will need to continue relying on intellectual property law, right of publicity protection, and market monitoring to protect their brands.