GenAI ground rules: A pre-work checklist for agencies and clients

First stop: Ensure protection of agency intellectual property

Have you registered your company’s name, logo and taglines with the United States Patent and Trademark Office?
Do you have a form copyright notice to use on pitch decks and promotional materials?
Do you have a template NDA to use before pitching?

Second stop: Get ready to document the agency-client contract

Have you formally confirmed with the client that you are authorized to proceed with paid (rather than pitch) work?
Have you closely reviewed your SOW with legal to ensure it builds in flexibility to expand the scope of work and adjust fees?
Have you conducted team training so that the relevant team members understand the contracting process and key contract provisions?
Have you closely reviewed any potential AI tools’ platform terms of use in advance to understand the scope of rights and protections, if any, that the platform gives to its users?

Third stop: Build your contract toolkit

Do you have multiple template variations and payment models that can be deployed “turnkey”?
Do you know how to define “AI” in your client agreements to avoid blanket restrictions?

Given the ubiquity of AI in a variety of business tools, it’s important to clearly define what “generative AI” means to ensure the agency-client agreement is not unnecessarily restrictive or burdensome — and to ensure all parties are on the same page. Clients are usually only concerned about generative AI tools. If other bespoke types of AI are contemplated, explain what they are and what they do to eliminate confusion and potential disputes later.

Consider agreeing upon pre-approved generative AI tools for use in client work. Have you aligned with clients on how you’ll use AI — creative output vs. productivity or even agentic tools? Transparency about the intended use of AI is key.

Agencies should generally expect to be responsible to clients for AI usage. Always have a discussion with clients about any obligations and practices they expect the agency to abide by when using generative AI. Agencies should have their own internal policies for employees, freelancers and vendors.

Review expectations for ownership of AI-generated material and ensure any vendor or freelancer agreements grant pass-through rights.

Ensure generative AI technologies, including deep-fake technologies, are not being used to circumvent third-party agreements such as talent agreements. Talent agreements should be reviewed in detail, and SAG implications considered (if applicable), before assuming that it is acceptable to modify a person’s performance using AI technology.

Have you considered what approach you will take to limit or exclude agency liability for the use of generative AI?

Overall best practices