IP Things You Should Be Planning for Now (And They Aren’t All About AI)

Lately, I’ve been thinking of that old C&C Music Factory song, “Things That Make You Go Hmm.” There have been quite a few “hmm” moments in the world of intellectual property (IP) recently, and not all of them involve generative AI.

While most headlines focus on AI and copyright, the courts still haven’t clearly defined what “fair use” means for either building AI systems or generating AI content. That will take time. 

What’s been catching my attention instead are situations where existing IP rights, such as trademarks and Name, Image, and Likeness (NIL), are being used, sometimes improperly, by others.

Register Your Trademarks and Servicemarks, Seriously

Last week, I’ve seen reports of businesses creating “placeholder” landing pages for non-profits using potentially unauthorized IP, including trademarks, servicemarks, logos, and other reputation-linked materials.

This kind of use can easily cross into call the lawyer territory under federal and state laws.

If you’re part of a non-profit and think trademarks don’t apply because you don’t sell goods or services, think again. 

Trademarks apply to goods; servicemarks apply to services; and both absolutely apply to non-profits.

When you register these marks, federal law gives you much stronger tools to:

Shut down unauthorized uses, and potentially collect damages from infringing parties.

Practically speaking, many website hosts and social platforms will refuse to take down infringing content unless you can show a valid registration. If you haven’t already, talk to your IP lawyer about getting your marks registered.

Name, Image, and Likeness (NIL): Have Your Takedown Letters Ready

Over the weekend, I stumbled across a science podcast that used the name, image, and likeness of a well-known scientist in a very odd way through generative AI. 

The creator even admitted it was unauthorized but brushed it off as “entertainment.”

This kind of misuse is becoming increasingly common. 

Platforms are unlikely to act on a takedown request unless you can show clear proof that the affected person, or their authorized representative, is making the request and that the use is not “fair use.”

If you represent a company or create content yourself, be ready to act fast. Misuse of your NIL, especially in misleading or reputationally harmful contexts, can spread quickly.

Work with your IP representatives now to set up a takedown process.

Also, consider adding a public NIL policy statement on your website or profile that clearly says your NIL cannot be used without permission. 

When misuse happens, and it will, having that structure ready makes all the difference.

These aren’t abstract risks or distant possibilities. They are things that are already happening, right now. 

Don’t say I didn’t warn you.