It is well known that generative Artificial Intelligence (AI) has been gaining more and more space in all business sectors, especially in the advertising segment.

This is because the use of generative AI platforms such as DALL-E, Sora, Midjourney, among others, can significantly reduce the time and financial resources used for advertising creations.

On the other hand, the indiscriminate use of these platforms can bring significant legal and reputational risks that must be factored into the production of an advertisement that uses generative AI. To illustrate these risks, we can cite the well-known Brazilian agency DM9, which lost the award won in the “Creative” category, granted by the Cannes Lion, after it was discovered that AI-generated and manipulated content was used to simulate real events in the campaign.

In the field of intellectual property, there are numerous discussions about the use of generative AI, whether regarding the ownership of rights (who owns the rights to an AI-generated “work”?), authorship (who is the author of the AI-generated “work”? The individual who input the commands/prompts or the “machine”?) and potential infringements and copies of what was developed by the system.

At this point, there is a great deal of uncertainty about the application of copyright to content generated by AI, since there is no consensus on whether such content is protected by copyright, given that Brazil’s Copyright Law considers only a human to be an author.

Thus, the existence or not of authorship will always depend on the degree of human intervention in the creation process (if the AI is used only to assist the author and is not decisive in generating the content, it is possible to justify copyright protection). Moreover, if it is understood that the content is not protected by copyright, there will be no protection at all, allowing third parties (including competitors) to use identical or “inspired” campaigns, once again creating reputational risks for companies.

Therefore, beyond intellectual property, the concern with the risks involving the use of AI is growing in Brazil and is at the center of discussions even at the legislative level. Currently under discussion is Bill PL 2338/2023, authored by Senator Rodrigo Pacheco (PSD/MG), which aims, as described in Article 1, to protect fundamental rights, encourage responsible innovation and competitiveness, and ensure the implementation of safe and reliable systems.

To achieve this goal, the bill presents numerous principles, definitions, and risk categorizations related to the use of generative AI, which will be important to guide AI regulation in Brazil and follow an international trend in addressing the topic.

While legislative, doctrinal, and jurisprudential discussions are ongoing, it is important to highlight some precautions that should be applied to mitigate exposure to legal risks.

In this sense, especially in advertising campaigns, we recommend some best practices, including:

1. Use of prompts

Avoid using prompts (commands to generative AI) that may potentially infringe intellectual property or image rights.

Examples: prompts like “generate a song in the style of the band KISS”; “generate an image of a person who looks like Chico Buarque”; “generate a video in the style of the series The Last of Us,” etc.

2. Document the prompts used

When creating a campaign using generative AI, it is important to document the prompts used on all generative AI platforms. This is because, in the event of a legal action, it may be possible to demonstrate good faith and, if the requirements are met, the possibility of authorship.

Considering that there is no consensus on authorship and ownership, it is recommended to record the entire step-by-step process of human and non-human intervention in notarial records or digital evidence registration tools.

3. Sensitive information

Avoid including sensitive data on the generative AI platform such as:

– Personal data (CPF, full name, etc.)

– Trade secrets (internal and confidential company data)

– Images and videos of people without proper authorization

Such data may be used by the AI for learning/training and may appear in responses to third parties.

4. Review terms and conditions of generative AI platforms

The terms and conditions of the platforms (documents that outline the rules of use) may often prohibit the commercial use of the result generated by AI. Therefore, it is necessary to carefully review the terms and conditions to understand all applicable rules and usage limitations.

5. Attention to contractual clauses with advertising agencies

If the campaign was carried out by an external agency, it is highly recommended to include contractual provisions such as the requirement to document the prompts used or even the prohibition of AI use.

Additionally, it is advisable to include clauses that seek to ensure compensation for damages caused to your company in the event of third-party rights violations by the advertising agency.

Finally, it is important to note that the basic contractual clause of assignment of economic copyright of the advertising campaign, common in this type of operation, may not be applicable, as there may be no copyright to assign.

6. Creation of internal best practices manuals for the use of generative AI

It is always advisable to create a best practices manual for the use of generative AI within the company. Such a manual will outline recommended uses and associated risks and can demonstrate good faith in case of legal disputes.

Questions about how to use generative AI responsibly and with less risk? Talk to the Ritter Advogados’ team.

¹ https://oglobo.globo.com/economia/negocios/noticia/2025/06/29/cannes-lion-tira-premio-da-agencia-dm9-por-uso-de-ia-em-campanha.ghtml

² https://www.camara.leg.br/proposicoesWeb/prop_mostrarintegra?codteor=2868197&filename=PL%202338/2023