Generative AI IP Compliance Checklist: Policy, Provenance, Disclosure, and Contracts

By Casey Scott McKay · 2023-12-26

This checklist takes a company from "our designers started using Midjourney last spring" to a defensible IP file, in eleven phases a competent practitioner can work top to bottom. It covers inventorying tools and tiering outputs by the protection they need; writing and training on a policy whose operative clause manufactures registrable subject matter rather than merely prohibiting things; capturing the human authorship record at creation instead of reconstructing it under a discovery deadline; deciding what to register and completing the Copyright Office limitation-of-claim fields with model text; repairing earlier registrations through supplementary registration under 17 U.S.C. § 408(d) before a defendant finds them; and negotiating the nine vendor provisions that decide whether an indemnity is worth anything. Later phases handle training-data provenance and the corpus register for anyone who fine-tunes, clearance of generated logos, third-party marks, synthetic voices, and generated audio, the customer and contractor paper that has to change, and a day-by-day incident response that preserves both the vendor tender and the insurance notice. Every item names the form, the fee, the field, the rule, or the office, and one matter — Kestrel Athletic, a Boulder activewear brand nine months from a Series B — is carried from inventory through claim. The doctrine behind it lives in the companion article; the long-form procedure lives in the companion guide.

IP and Technology > Copyright | Checklist | Published 26 December 2023 - Updated 15 June 2025 | Casey Scott McKay - marksy.us

Summary. Eleven phases that convert an ungoverned generative AI pipeline into a file that survives an examiner, a diligence team, and a motion under 17 U.S.C. § 411(b). Inventory the tools and tier the outputs; write a policy whose central clause puts a human between the model and the deliverable; capture the authorship record at creation; register what is registrable and disclaim what is not, field by field; fix the applications already on file; move the nine vendor provisions that matter; build a corpus register if anyone in engineering has typed the word "LoRA"; clear the generated logo, the synthetic voice, and the generated track; repair the customer and contractor paper; and run the first fourteen days of a claim without forfeiting your indemnity. Each item names the rule, the fee, the field, or the office. Kestrel Athletic — a Boulder activewear brand nine months out from a Series B — is carried through all eleven.

Keywords: ai use policy audit · generative ai inventory · output tiering · human authorship record · provenance capture · prompt log · copyright registration disclosure · limitation of claim · supplementary registration · vendor indemnity conditions · training exclusion clause · corpus register · generated logo clearance · synthetic voice release · litigation hold · 17 u.s.c. 411(b) · 17 u.s.c. 412 · eu ai act transparency · ai incident response · rights schedule scrub

What This Checklist Is For

You have a company that ships content, and somewhere in the pipeline is a model. This list is the sequence of concrete acts that gets you from that fact to a documented position you can defend — to the Copyright Office, to an acquirer, to an opposing party, and to your own board.

Who should use it. In-house counsel and legal ops at any company producing AI-assisted deliverables; outside counsel running an AI governance engagement; a founder who needs the first ninety days right; a diligence team testing a target's content library.

What this is not. It is not an explanation of why a machine cannot be an author. That is in Who Owns What the Machine Made, and this checklist assumes it. The long-form procedure — model contract language, ask/fallback/walk-away tables, cost ranges — is in Deploying Generative AI Without Losing Your IP. This is the working list.

What you need before you start.

Twelve months of expense reports and corporate card statements, plus the SSO/IdP application log.
A list of every registered copyright and pending application for works created since roughly mid-2022.
Every generative-tool agreement and the terms-of-service version in force when each asset was made.
The standard customer services agreement, the contractor template, and the current freelancer roster.
Read access to the design repository, the asset management system, and the marketing content calendar.
An owner with authority to block a release. Without that, this is a memo.

| Phase | You finish with | Owner | Elapsed | |---|---|---|---| | 1. Inventory and tier | A tool register and a four-tier output map | Legal ops | 2-4 weeks | | 2. Policy and training | A signed policy, a required workflow field, logged attendance | Legal + HR | 2 weeks | | 3. Authorship record | A one-page record attached to every Tier 1 asset | Design lead | Ongoing | | 4. Registration strategy | A filing decision per asset family | Outside counsel | 1 week | | 5. Disclosure | Applications filed with correct limitation-of-claim text | Paralegal | 1-3 months to certificate | | 6. Repair | Supplementary registrations and surrenders | Outside counsel | 3-9 months | | 7. Vendor contracts | Training exclusion, non-assert, indemnity you can use | Legal + procurement | 2-6 weeks | | 8. Corpus provenance | A corpus register and a memorization report | Engineering + Legal | 2-4 weeks | | 9. Output clearance | Cleared marks, signed releases, cleared audio | Brand + Legal | 1-8 weeks | | 10. Downstream paper | Fixed deliverables clause, fixed contractor form | Legal | 1-2 weeks | | 11. Incident readiness | A hold template, a tender template, a named witness | Legal | 1 week |

The matter. Kestrel Athletic, Inc., Boulder, Colorado. 140 employees, roughly $74M in revenue, activewear and a training app called Kestrel Trail. Generative tools produce catalogue and campaign imagery, product-detail-page copy, packaging illustration, a device mark for the SWITCHBACK sub-line, and synthetic coaching audio in the app. A Series B is nine months out. Matter KES-2041. Every phase below ends with what Kestrel actually did.

Phase 1 — Inventory the AI Footprint and Tier the Outputs

[ ] Pull twelve months of expense reports and card statements and flag every charge to an image, text, audio, video, or code generation vendor, including charges under $30.
- Why. Personal-card reimbursements are where the unmanaged accounts are, and consumer tiers usually grant the vendor a license to use your inputs and outputs for training.
- Trap. Finance codes these as "software" and nobody reads the line items. Search vendor names, not categories.
[ ] Export the SSO/IdP application list and the browser-extension inventory from device management; reconcile against the expense list.
[ ] Grep the engineering repositories for API keys and SDK imports for model providers, and ask one direct question in writing: has anyone fine-tuned, distilled, or trained an adapter on anything?
- Why. Consuming a model and training one are different legal problems. Phase 8 exists only if the answer is yes.
[ ] Interview marketing, design, engineering, and proposals/RFP — the four functions with unreported usage in every company.
[ ] Build a tool register with one row per tool: vendor, plan tier, payer, applicable terms-of-service version and date, whether outputs reach customers, whether inputs include confidential or third-party licensed material.
[ ] Tier every output family: Tier 1 core assets you sell, license, or list on a rights schedule; Tier 2 supporting content where you accept thin or no copyright; Tier 3 internal drafts; Tier 4 prohibited — likeness or voice without a release, client confidential material in a consumer tier, prompts naming a living artist or a competitor's brand.
- Why. Process should track the protection an asset needs. Full provenance capture on Instagram filler is waste; skipping it on a Tier 1 asset is malpractice.
- Authority. Nothing compels the inventory. Two things make it mandatory in practice: 17 U.S.C. § 411(b)(1)(A), which turns "we didn't know what the art team was using" into a litigated question about knowledge, and the diligence request list every Series B investor sends. The chain-of-title discipline is the same one in the Copyright Ownership and Chain-of-Title Checklist.
[ ] Kill every personal account touching company work and migrate to enterprise provisioning before you write a word of policy.

Kestrel. The inventory finds five Midjourney seats (three on personal cards), an Adobe Firefly enterprise seat, a consumer chatbot writing product-detail-page copy, a Stable Diffusion instance an engineer stood up on a workstation, and a voice tool nobody in legal had heard of. Catalogue imagery, packaging illustration, the SWITCHBACK device, and app coaching audio are Tier 1. Blog art is Tier 2. The workstation is Phase 8.

Phase 2 — Write the Policy and Train On It

[ ] Name the approved tools on a schedule Legal maintains, and require the enterprise or business plan for anything touching a Tier 1 asset.
- Why. The training opt-out, the confidentiality terms, and the indemnity live only in the enterprise tier.
[ ] Write the human contribution requirement as an operative rule: no Tier 1 deliverable ships in the form the tool produced it, and an identified employee must make and record independent expressive choices on top of it.
- Why. This is the clause that manufactures registrable subject matter. Copyright in a work containing preexisting material extends to the new material the author contributed, 17 U.S.C. § 103(b), and the Copyright Office recognizes creative selection, coordination, and arrangement of AI-generated material, plus creative modification of it, as protectable. U.S. Copyright Office, Copyright and Artificial Intelligence, Part 2: Copyrightability (Jan. 2025).
- Trap. Policies written by risk teams prohibit and never create. A policy that only says "don't upload secrets" leaves you with an unprotectable library and a clean conscience.
[ ] Prohibit disabling, bypassing, or degrading any content filter, output filter, watermark, or safety system, and say in the policy that doing so voids vendor indemnification.
[ ] Prohibit prompts that name a living artist, performer, public figure, specific third-party work, character, title, or competitor's mark, and state that prompt history is subject to review.
[ ] Require logging at creation and prohibit deletion of prompt logs, candidates, and working files without Legal's approval.
- Authority. Fed. R. Civ. P. 37(e). Loss of electronically stored information you should have preserved is sanctionable, and the sanction lands on the client.
[ ] Put the authorship requirement in the production system, not only the handbook — make the asset manager reject a Tier 1 file without a completed record.
[ ] Train live, take attendance, and keep the roster.
- Trap. An untrained policy is worse than none. Opposing counsel will read your policy aloud and then hand the witness the Slack thread showing nobody followed it.

Kestrel. Policy adopted 3 March, effective on signature, with a required "Authorship Record ID" field added to the production tracker on 17 March. 128 of 140 employees train within three weeks; the twelve stragglers are the design contractors, which is Phase 10.

Phase 3 — Capture the Human Authorship Record

[ ] Capture the machine layer automatically for every Tier 1 asset: tool, model name, model version, date and time, full prompt text, negative prompts, seeds, and parameters.
- Why. Model version determines which terms of service and which indemnity applied. Prompts determine whether an exclusion was triggered.
[ ] Retain every intermediate candidate, not just the chosen one.
- Why. Selection is the authorship claim. You cannot prove selection without the rejects.
[ ] Retain human-authored inputs — sketches, photographs, masks, reference art — in a source folder linked to the asset, with the license for anything third-party.
- Why. Human-authored material perceptible in the output carries your copyright in what you contributed. That is the strongest claim available in this field, and it depends on being able to show the input.
[ ] Retain the layered working file with edit history, versioned.
[ ] Complete a one-page Human Authorship Record per Tier 1 asset, signed and dated by the named author, covering: machine-generated material incorporated; human-authored material contributed; number of candidates reviewed and the basis for selection; how the material was coordinated, sequenced, cropped, or laid out; what was changed, added, removed, repainted, or rewritten after generation.
- Why. This is the document your application text is written from and the document a witness authenticates. The application must identify the authors and, for a compilation or derivative work, describe the preexisting material and the new material claimed. 17 U.S.C. § 409(2), (9).
- Authority. Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., 595 U.S. 178, 185-86, 189 (2022), makes the applicant's state of knowledge the battleground and holds that willful blindness supports a finding of knowledge. A contemporaneous record beats a reconstructed recollection.
[ ] Preserve Content Credentials / C2PA manifests where the tool emits them, and do not strip them on export.
[ ] Spot-check the prompt log against the policy monthly and remediate what you find.
- Trap. The log proving your designer iterated thirty times also proves the one time she typed a living illustrator's name. Review it, fix it, and never delete it — deletion converts a bad fact into a spoliation instruction.

Kestrel. Three to six minutes per asset once the workflow exists. Kestrel backfills 1,140 catalogue images from Midjourney account history and the Firefly version graph, and marks 212 assets "provenance incomplete — pre-policy." That honest label is worth more in diligence than a fabricated record.

Phase 4 — Decide What to Register

[ ] For each asset family, ask first whether there is identifiable human-authored expression. If there is none, do not file. Protect it as a trademark if it identifies source, as a trade secret if unpublished, or by contract.
- Authority. 17 U.S.C. § 102(a); Thaler v. Perlmutter, 687 F. Supp. 3d 140, 146 (D.D.C. 2023), aff'd, 130 F.4th 1039 (D.C. Cir. 2025). For the fallback regime see Trade Secrets and the DTSA.
[ ] Where the human wrote text, drew art, or took photographs, register the work and disclaim the generated parts.
[ ] Where the human substantially modified generated material — repainting, compositing, real rewriting — register it as a work containing preexisting material and claim the new material only. 17 U.S.C. § 103(b).
[ ] Where the only human contribution is selection, coordination, and arrangement, register the compilation only if there are plural items to arrange. One generated image plus one prompt is nothing to select and nothing to arrange.
[ ] Pick the vehicle. Single Application only for one work, one human author who is also the claimant, not made for hire; everything with an employer-claimant, a joint work, a derivative work, or a compilation goes on the Standard Application. 37 C.F.R. § 202.3(b)(2).
[ ] Use the group options where they fit — unpublished works, published and unpublished photographs, short online literary works, serials and newsletters, contributions to periodicals. 37 C.F.R. § 202.4.
- Why. A group of published photographs covers up to 750 images for one fee. Per-asset filing for a catalogue operation is a budget line nobody approves twice.
[ ] Docket the three-month window from first publication before you file anything.
- Authority. 17 U.S.C. § 412(2). Statutory damages and attorney's fees are unavailable for infringement commencing after first publication and before registration, unless registration is made within three months of first publication. The arithmetic is in What Copyright Registration Actually Buys You; the docketing discipline is the same one in Docketing Deadlines.
- Trap. For a company shipping weekly, the answer is a standing monthly group filing, not heroics on individual assets. The mechanics are in Registering a Copyright and the Copyright Registration Checklist.

Kestrel. The SWITCHBACK Lookbook (human-written copy, human layouts, generated imagery) gets one Standard Application. 640 human-shot campaign photographs go in a group registration of published photographs. The 1,140 purely generated catalogue images get nothing — correctly — and are re-protected as trade secrets while unpublished and as trade dress where they show the product.

Phase 5 — File the Disclosure Correctly, Field by Field

[ ] In Author Created, describe only the human contribution. Do not describe the work.
- Model text, text-and-arrangement claim: text; compilation of text and artwork; selection, coordination, and arrangement of artwork
- Model text, modification claim: 2-D artwork; editing and revision of preexisting artwork
[ ] In Limitation of Claim → Material Excluded, check the applicable content boxes and use the Other field to describe the generated material in plain terms.
- Model text: artificial intelligence-generated artwork produced by Midjourney and Adobe Firefly
[ ] In Limitation of Claim → New Material Included, state exactly what you are claiming, mirroring the Author Created field.
- Model text: text; selection, coordination, and arrangement of artificial intelligence-generated artwork; human-authored page layouts
- Authority. Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192-93 (Mar. 16, 2023); Compendium of U.S. Copyright Office Practices §§ 306, 313.2, 621 (3d ed. 2021). AI-generated content that is more than de minimis must be disclosed and excluded from the claim.
- Trap. "De minimis" is undefined. The working line is that routine assistive processing — denoise, spell-check, standard photo adjustment — needs no disclosure and generated expression does. Where you are genuinely unsure, disclose. A narrower certificate is a cheap purchase; an inaccurate one is not.
[ ] Deposit the work as published. Do not deposit prompts — but keep them, because the examiner sometimes asks and that is the cheapest version of the question.
[ ] Pay the correct fee and note the realistic timeline. Standard Application $65; Single Application $45; group of unpublished works (up to 10) $85; group of published photographs (up to 750) $55; paper application $125; special handling $800 plus the filing fee. 37 C.F.R. § 201.3. Verify against Circular 4 before filing; the Office adjusts the schedule.
[ ] If the Office corresponds, answer in writing, briefly, in the Office's vocabulary — selection, coordination, arrangement, modification, human-authored material perceptible in the output — and respond within the period the letter states.
- Trap. Do not argue to an examiner that prompting is authorship. That argument lost before the Copyright Review Board in Théâtre D'opéra Spatial (Sept. 5, 2023) after 624 prompt revisions, and again in SURYAST (Dec. 11, 2023) where the applicant had supplied his own photograph as an input. It belongs in a district court, on a record built for it. And special handling buys a faster question, not a faster certificate.

Kestrel. Files 14 May, electronically, with the three fields above. Draws routine correspondence on 2 September asking it to confirm the extent of the generated contribution. Answers in nine sentences, attaches nothing, and the certificate issues 19 November covering the copy, the layouts, and the selection and arrangement.

Phase 6 — Repair the Registrations Already on File

[ ] Pull every registration and pending application for a work created after mid-2022 and ask one question per record: did more-than-de-minimis generated material go into it, and was it disclosed?
[ ] Where the human contribution is real and the claim would still have registered, just narrower, file a supplementary registration adding the limitation of claim.
- Authority. 17 U.S.C. § 408(d); 37 C.F.R. § 202.6. Roughly $100. Supplementary registration augments the original and does not supersede it, so the original effective date survives — which is the entire point of doing it.
[ ] Where the work has essentially no human authorship, do not sue on it. Consider surrender or cancellation under 37 C.F.R. § 201.7 and re-protect through trademark or trade secret.
[ ] Where the application is still pending, correct it now by written communication to the examiner. Cheapest possible moment.
[ ] Where you are already in litigation on the registration, stop and call litigation counsel before touching it. A mid-case supplementary filing is an admission and has to be timed and framed deliberately.
[ ] Do all of this before you file suit, not after the defendant finds the art director's LinkedIn post.
- Why. A certificate survives inaccurate information unless the inaccuracy was included with knowledge and would have caused the Register to refuse registration, in which case the court must ask the Register. 17 U.S.C. § 411(b)(1)-(2). Unicolors held that "knowledge" reaches mistakes of law as well as fact, 595 U.S. at 185-86 — which protects the applicant who genuinely did not know, and does nothing for the one who read the March 2023 guidance and filed anyway. Every month you sit on a known problem moves you from the first category to the second.
- Trap. Write the audit as a privileged memo addressed to counsel requesting legal advice, and keep the factual attachments in a separate file. The facts are discoverable in most postures. The analysis has a chance not to be.

Kestrel. Nine registrations from the prior two years cover works with undisclosed generated material. Six get supplementary registrations at $100 each. Two are pending and are corrected by letter. One — a generated hangtag illustration registered as original artwork — is surrendered, and Kestrel files a trademark application on the stylized kestrel device inside it instead. That is the right trade: a copyright that would not survive a motion, exchanged for a mark that renews forever if used.

Phase 7 — Vendor Contract Diligence

[ ] Get an express exclusion of your inputs and outputs from training, fine-tuning, evaluation, and product development, flowing down to subprocessors and downstream model providers, surviving termination.
- Trap. Confirm it in the agreement, not on the marketing page. Marketing pages change without notice and are not contract.
[ ] Read the output ownership clause for what it actually conveys. An assignment of "all right, title, and interest" in output conveys whatever the vendor has, which as to uncopyrightable material is nothing.
- Why. The valuable half is the covenant not to assert. Ask for it expressly. On the difference between conveying and permitting, see Assignments vs. Licenses and the Trademark Assignment Agreement template; on the writing a transfer must satisfy under 17 U.S.C. § 204(a), see Transfers, Licenses, and Termination Rights.
[ ] Find the sentence saying identical or similar outputs may be delivered to other customers, and reconcile it with whatever your pitch deck says about proprietary assets.
[ ] Push indemnity subject matter beyond copyright to trademark, right of publicity, and trade secret.
- Why. A copyright-only indemnity leaves the generated-brand and synthetic-voice exposure in Phase 9 entirely uninsured, and those are the expensive claims.
[ ] List every condition on the indemnity and convert each into an internal control with a named owner: filters on, used as documented, prompt hygiene, prompt notice, tender, vendor control of the defense.
[ ] Compare the cap to a real defense budget. An indemnity capped at fees paid over the prior twelve months is a rounding error below serious spend; ask for an IP supercap or uncapped defense with capped settlement authority, and buy media liability insurance for the gap.
[ ] Ask for the warranties a vendor can actually give: that it has the rights necessary to provide the service, that the corpus was assembled in compliance with law, that output filters function, and that it will not knowingly deliver output reproducing a third-party work.
[ ] Get notice and a termination right on material adverse change to the terms, plus a log-retention commitment with an export right.
- Why. A unilateral amendment can move you from the indemnified tier to the unindemnified one overnight, and you will need the vendor's logs in Phase 11.
- Trap. The condition you cannot police is the prompt exclusion — "customer prompted for output resembling a specific third-party work." That defense lives in a marketing team's chat history. Buy the control in Phase 2 before you rely on the indemnity.

Kestrel. Moves to enterprise plans, wins the training exclusion and the non-assert covenant, and gets copyright-only indemnity capped at 2x fees — about $96,000, which would not fund four weeks of a defense. Kestrel therefore buys a media liability policy with an IP endorsement at a $3M limit. That policy, not the vendor indemnity, is the actual protection, and the board is told so in writing.

Phase 8 — Training-Data Provenance

Skip this phase if you only consume. Do not skip it if anyone has fine-tuned, distilled, or trained an adapter.

[ ] Separate the four acts in your own records, because the courts are separating them: acquisition, reproduction into a durable corpus, training, and output.
- Authority. Bartz v. Anthropic PBC, No. 3:24-cv-05417 (N.D. Cal. June 23, 2025) (training on lawfully acquired books highly transformative; retention of a permanent library of pirated downloads not fair use); Kadrey v. Meta Platforms, Inc., No. 3:23-cv-03417 (N.D. Cal. June 25, 2025); Thomson Reuters Enter. Ctr. GmbH v. Ross Intelligence Inc., No. 1:20-cv-00613 (D. Del. Feb. 11, 2025). How you got it matters independently of what you did with it.
[ ] Build a corpus register with one row per source: origin, date acquired, acquisition method, license or terms relied on, whether robots.txt and machine-readable opt-out signals were honored, whether the source sat behind a paywall or technical protection measure, retention location, deletion date.
[ ] Purge anything sourced from a known piracy repository, document the deletion with a certification, and note it in the register. Excluding files from training while keeping them on disk does not solve the problem.
[ ] Preserve source metadata in the register even though the training tensors drop it.
- Why. Cheapest available answer to a copyright management information claim. Section 1202(b) requires intentional removal plus knowledge that it will induce, enable, facilitate, or conceal infringement — the double scienter of Stevens v. CoreLogic, Inc., 899 F.3d 666, 673-75 (9th Cir. 2018) — and statutory damages run $2,500 to $25,000 per violation under 17 U.S.C. § 1203(c)(3)(B).
[ ] Run a memorization evaluation before release: probe with prompts engineered to elicit known training examples, measure near-duplicate rates against high-value sources, and keep the results.
- Why. Verbatim regurgitation is what turns a defensible training program into a losing case.
[ ] Write the four-factor fair use file at ingestion, per corpus segment, not at complaint. Use Running a Fair Use Analysis and the Fair Use Risk Assessment Checklist; the doctrine is in Fair Use After Warhol.
[ ] If you make a generative system publicly available to Californians, post the training-data documentation Cal. Civ. Code § 3111 requires (added by AB 2013, operative 1 January 2026). If you place a general-purpose model on the EU market, maintain the copyright policy and publish the training-content summary required by Article 53 of Regulation (EU) 2024/1689.
- Trap. The style adapter nobody told legal about. Whether a fine-tune on one living illustrator's work is a derivative work under 17 U.S.C. § 101 is genuinely open; the training copies and the unfair competition exposure are not. Tier 4. Block it at the tool level.

Kestrel. The workstation instance turns out to hold a LoRA trained on 3,200 of Kestrel's own catalogue photographs — fine, and now documented in a register with the photographers' releases attached. It also holds a second adapter trained on a scraped folder of one outdoor illustrator's portfolio. That one is deleted with a signed certification on 21 March, and the four campaign images derived from it are pulled and reshot.

Phase 9 — Clear the Output: Brands, Marks, Voices, Faces, Audio

[ ] Clear any generated logo or wordmark before adoption, exactly as you would clear a human-designed one.
- Why. Trademark does not care who drew it — rights come from use and registration, 15 U.S.C. §§ 1051, 1127 — which makes trademark the best answer to the ownership gap for brand assets. But generative tools produce near-misses of existing marks with cheerful regularity, and a model's suggestion is not a defense. Run Running a Full Trademark Clearance Search with the Trademark Clearance Search Checklist; the framing is in Trademark Clearance Searching, and the filing prep is the Pre-Filing Trademark Application Checklist.
[ ] Never submit a generated product image as a specimen of use.
- Authority. 37 C.F.R. § 2.56; TMEP § 904. The USPTO refuses digitally created or altered mockups. Worse, a declaration signed knowing the goods are not sold is the fact pattern that meets the intent-to-deceive standard of In re Bose Corp., 580 F.3d 1240, 1245 (Fed. Cir. 2009). See Specimen Refusals.
[ ] Route generated copy that names a third-party mark through the Trademark Fair Use Audit Checklist; the doctrine is in Descriptive and Nominative Fair Use.
[ ] Get a release drafted for synthetic use before any real person's voice, face, name, or signature style enters the pipeline — covering scope (training, output, or both), media, term, territory, permitted and prohibited uses, approval rights, takedown obligations on termination, and post-mortem treatment.
- Why. This is not a copyright problem and filing it as one wastes a year. Deliberately imitating a distinctive voice to sell a product is a right-of-publicity violation. Midler v. Ford Motor Co., 849 F.2d 460, 463 (9th Cir. 1988); Waits v. Frito-Lay, Inc., 978 F.2d 1093, 1098-1100 (9th Cir. 1992). A Lanham Act false endorsement claim under 15 U.S.C. § 1125(a) can reach an evocation of identity that never uses the name or image at all. White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992). State statutes now address replicas expressly — Tennessee's ELVIS Act, amending Tenn. Code Ann. § 47-25-1101 et seq.; Cal. Lab. Code § 927; Cal. Civ. Code § 3344.1.
- Trap. A 2019 talent release permitting "use of the recordings in the Company's advertising" does not permit training a voice model on them. Re-paper it. Use Clearing and Licensing Name, Image, and Likeness, the NIL Clearance Checklist, and the curated cluster in the Right of Publicity and Personal Brand Toolkit. The patchwork itself is mapped in Your Face Is Not Public Domain.
[ ] Clear generated audio twice — composition and master are separate copyrights and generative tools respect neither. Two Copyrights, One Song; Music Clearance Checklist.
[ ] Add one yes/no field to the creative intake form: does this asset depict, evoke, or imitate a real, identifiable person? It costs nothing and catches the most expensive category of mistake on this list.

Kestrel. The SWITCHBACK device clears with two watch items and files at the USPTO in Classes 25 and 28 (base application fee $350 per class; confirm the current schedule at 37 C.F.R. § 2.6 before filing, and use the ID Manual to avoid free-form surcharges). The app's coaching voice turns out to have been cloned from a real trainer's 2019 promo shoot under a release that says nothing about training. Kestrel pauses the feature, negotiates a synthetic-use amendment for $18,000 and a three-year term, and relaunches.

Phase 10 — Downstream Paper: Customers, Contractors, Disclosures

[ ] Amend the customer deliverables clause. You cannot assign a copyright that does not exist and you cannot warrant the originality of material no human authored.
- Why. The standard clause — client owns the deliverables, provider warrants originality and non-infringement — becomes a breach-of-warranty claim the moment generated material is in the file. Replace the blanket warranty with three narrow ones: the provider has the right to grant what it grants; the provider's human-authored contributions are original to the provider; and the provider has not knowingly prompted for, and does not know of, any deliverable reproducing a specific third-party work.
- Trap. If the client insists on an unqualified originality warranty, price it or route the work to human-only production. Do not sign it and hope.
[ ] Re-paper every contractor: present assignment of all copyrightable contributions with a work-for-hire fallback, a representation about tool use, an obligation to deliver prompt logs and working files, and compliance with your AI policy by reference.
- Authority. 17 U.S.C. §§ 101, 201(b), 204(a). A contractor who generates and then edits assets authors the edits, and you get them only by written assignment or valid work-for-hire. The framework is unchanged by the technology — see Who Owns the Work.
[ ] Scrub the investor deck and the sales collateral for ownership claims you cannot support.
- Trap. "Proprietary, fully owned visual library" in a Series B deck, when most of the library is unprotectable, is a securities problem sitting on top of an IP problem. Nobody sends the deck to legal. Ask for it.
[ ] Handle the consumer-facing and cross-border disclosure obligations: no fake or AI-generated reviews and testimonials, 16 C.F.R. pt. 465; synthetic spokespeople and material connections under the Endorsement Guides, 16 C.F.R. pt. 255; and, if you sell into the EU, machine-readable marking of synthetic content and deepfake disclosure under Article 50 of Regulation (EU) 2024/1689, applicable from 2 August 2026. Where these land at ship time is mapped in the Website and App Launch Legal Checklist and Launching a Website or App Without Legal Debt.
[ ] If you are a law firm, read ABA Formal Opinion 512 (July 29, 2024) against your own practice — competence, Model Rule 1.1 cmt. 8; confidentiality, Rule 1.6; supervision, Rules 5.1 and 5.3; fees, Rule 1.5 — and check the standing orders of every court you appear in. Mata v. Avianca, Inc., 678 F. Supp. 3d 443 (S.D.N.Y. 2023), is still the cautionary case.

Kestrel. The wholesale agreement with a national retailer warranted that all supplied imagery was "original and owned by Kestrel." That representation was false as to 1,140 catalogue images from the day it was signed. Kestrel discloses, amends to the narrowed warranty, and the retailer signs — because the alternative is reshooting a catalogue neither side wants to reshoot.

Phase 11 — Incident Response and the Discovery File

[ ] Day 0. Issue a written litigation hold covering prompts, seeds, model versions, candidates, working files, authorship records, Slack and email about the asset, and vendor account history. Suspend auto-deletion. Fed. R. Civ. P. 37(e).
[ ] Day 0. Pull the asset if the claim is colorable, and write the internal takedown message as a preservation and review instruction, not a confession.
[ ] Day 0-1. Read the demand for what it actually asserts — copyright, trademark, right of publicity, § 1202 — because each has a different limitations period, remedy, and indemnity answer. If it is a cease-and-desist, the response discipline is in Responding to a Cease-and-Desist Letter.
[ ] Day 1-3. Tender to the vendor in writing, in the contractual form, to the contractual notice address, attaching the demand and reserving rights — even if you think an exclusion applies.
- Why. A late tender converts a coverage argument into a coverage forfeiture. Most indemnities require prompt notice and give the vendor control of the defense.
[ ] Day 1-3. Tender to insurance: media liability, tech E&O, and the advertising injury coverage in the CGL policy. Same speed.
[ ] Day 3-7. Run the merits from the authorship record and the prompt log. Three questions: was the claimant's work plausibly in the corpus; does the output copy protected expression rather than style; did anyone prompt for it.
- Authority. Style is not protectable; specific expressive choices are. The framework is in Proving Copyright Infringement. The side-by-side decides the case long before the experts do.
[ ] Day 3-7. Check the claimant's registration date against 17 U.S.C. § 412. Whether statutory damages and fees are on the table moves the settlement range more than any argument you will make.
[ ] Day 7-14. Choose a path: respond substantively and offer nothing where the resemblance is stylistic; remediate and settle narrowly where one asset in a limited run copies real expression; escalate to litigation counsel and make the vendor tender the main event where the problem is systemic.
[ ] If you are the claimant, the fastest remedy against a regurgitated output on a platform is a § 512 notice — and the fastest way to create your own liability is a defective one under § 512(f). Use the DMCA Takedown Notice Checklist and Sending and Fighting a DMCA Takedown; pre-filing screening is in the Copyright Infringement Complaint Checklist.
[ ] Build a § 411(b) folder for every registration you rely on: application as filed, all correspondence, certificate, authorship record, and a dated memo recording what the applicant knew about AI use when the application was signed.
- Why. That last memo is unusual and it is the document that wins the motion, because Unicolors made the applicant's state of mind the issue.
[ ] Name the deposition witness now, confirm that person can describe the pipeline accurately, and confirm the documents match what they will say.
[ ] Run a one-hour tabletop twice a year: hand the team a hypothetical demand and ask them to produce, within the hour, the prompt log, candidates, working file, and authorship record for a named asset shipped eighteen months ago. Whatever they cannot produce is your gap.

Kestrel. Eleven months after launch, an Oregon photographer's counsel writes claiming a Kestrel campaign image copies a composition from her portfolio. Kestrel holds, pulls the image, tenders to the vendor and to its media policy on day two, and runs the comparison. The prompt log shows her name was never entered. The images share a subject, a light direction, and a color grade; they share no specific composition. Kestrel responds on day nine with a side-by-side and the expression/style line, offers nothing, and hears nothing further. The boring, expensive prompt log made a two-week matter out of a two-year one.

Common Mistakes

Banning the tools. Prohibition produces shadow usage on personal accounts, an undocumented pipeline, and a discovery record you do not control. Govern it instead.
Writing a risk policy and calling it an IP policy. Confidentiality rules protect secrets. Only the human contribution requirement creates something you can register.
Filing without disclosing and hoping. The Copyright Office found out about Zarya of the Dawn from Instagram. Your opposing party will find out from the art director's LinkedIn.
Treating "you own the outputs" as ownership. The vendor assigns what it has. As to uncopyrightable material, that is nothing. The covenant not to assert is the part with content.
Relying on the indemnity without building the controls. Filters-on and no-prompting-for-protected-works are conditions, not slogans, and they are voided by a single engineer optimizing throughput.
Registering the compilation when there is one item. Selection and arrangement is a compilation concept. It needs plural things.
Missing the three-month window. 17 U.S.C. § 412(2) is the most consequential unmonitored deadline in content operations.
Deleting the prompt log after the demand letter. That converts a bad fact into a spoliation instruction under Fed. R. Civ. P. 37(e).
Filing a voice clone as a copyright case. It is a right-of-publicity and false endorsement case. Filing it as copyright costs a year.
Using a generated mockup as a trademark specimen. 37 C.F.R. § 2.56 and TMEP § 904 refuse it, and a knowingly false declaration is a much larger problem.
Listing AI outputs as owned copyrights on a rights schedule. A buyer will ask what the human did. Have the answer in writing before the question.
Letting the fine-tune happen off-book. "We trained it on her portfolio so it matches our look" is a Tier 4 sentence, and it always surfaces in diligence.

Deadlines at a Glance

| Trigger | Deadline | Authority | Consequence of missing it | |---|---|---|---| | First publication of a work | Register within 3 months to preserve statutory damages and fees for interim infringement | 17 U.S.C. § 412(2) | Actual damages and profits only | | Any infringement | Registration must precede the infringement (or fall in the 3-month window) | 17 U.S.C. § 412 | No statutory damages, no fees | | Before filing suit on a U.S. work | The Register must have acted on the application | 17 U.S.C. § 411(a); Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 586 U.S. 296, 301 (2019) | Complaint dismissed as premature | | Copyright Office correspondence | Respond within the period the letter states; the Office closes files for non-response | Compendium § 605.3 | Application closed; refile and lose the effective date | | Discovery of an inaccurate registration | File supplementary registration promptly — before suit | 17 U.S.C. § 408(d); 37 C.F.R. § 202.6 | Knowledge accrues; § 411(b) referral risk grows | | Demand letter or claim received | Tender to vendor and insurer within the contractual notice period (often 10-30 days; many policies say "as soon as practicable") | Contract; policy conditions | Coverage forfeiture | | Accrual of a civil copyright claim | 3 years | 17 U.S.C. § 507(b) | Claim time-barred | | Service of a Copyright Claims Board proceeding | Opt out within 60 days | 17 U.S.C. § 1506(i) | Bound to the CCB; damages capped at $30,000, § 1504(e) | | Counter-notice under § 512 | Provider restores in 10-14 business days absent suit | 17 U.S.C. § 512(g)(2)(C) | Material goes back up | | Notice of Allowance on an ITU trademark | Statement of use within 6 months, extendable to 36 | 15 U.S.C. § 1051(d) | Application abandons | | Trademark registration maintenance | § 8 declaration in years 5-6; §§ 8 and 9 in years 9-10; 6-month grace with surcharge | 15 U.S.C. §§ 1058, 1059 | Registration cancels | | EU general-purpose AI model placed on market | Copyright policy and training-content summary | Regulation (EU) 2024/1689 art. 53 (from 2 Aug. 2025) | Regulatory exposure | | Synthetic content shipped into the EU | Machine-readable marking and deepfake disclosure | Regulation (EU) 2024/1689 art. 50 (from 2 Aug. 2026) | Regulatory exposure | | Generative system made available to Californians | Post training-data documentation | Cal. Civ. Code § 3111 (from 1 Jan. 2026) | Statutory non-compliance |