Artificial intelligence has entered the world of marketing quickly and with relatively little friction. Images, videos, audio, advertising copy and campaign ideas can now be created in an instant. From a legal perspective, however, this does not mean that the basic rules of marketing have lost their relevance. Rather, AI places familiar questions in a new context. Is the marketing truthful? Does the recipient understand what they are being shown? Who is responsible for the end result?
Which new rules and guidance should marketers pay attention to?
The current discussion is being shaped by three key sets of materials. First, the International Chamber of Commerce, or ICC, has published guidance on the responsible use of AI in marketing. The guidance supplements the ICC’s marketing rules and emphasises that marketing must be lawful, decent, honest and truthful, regardless of the technology used to create it. The ICC guidance is a form of self-regulation rather than directly binding legislation. In practice, however, it may still be relevant when assessing the level of care that can reasonably be expected from a responsible marketer.
Second, Article 50 of the EU AI Act introduces binding transparency obligations relevant to marketing. Many of these obligations will apply from 2 August 2026. They concern, among other things, situations in which a person interacts with an AI system or is exposed to certain content generated or manipulated by AI. Third, the European Commission has published draft guidelines on Article 50, while a Code of Practice on the labelling of AI-generated content is also being prepared. According to the Commission’s draft, the guidelines are intended to provide practical assistance with interpretation. They do not constitute a binding or final interpretation of the AI Act.
There is no automatic obligation to disclose the use of AI
AI can be used in many different ways and at various stages of the marketing process. It is therefore important to recognise that its use does not need to be disclosed automatically in every situation. The ICC guidance states this quite clearly, and the AI Act does not create a general disclosure obligation either. The mere use of generative AI to create advertising materials or marketing communications does not in itself require disclosure. The key question is whether failing to disclose the use of AI could give the recipient a misleading overall impression. Where that is the case, disclosure may be necessary.
Deepfake content is a particular risk area in marketing
Article 50 of the AI Act makes disclosure of AI use a statutory obligation in certain situations. From a marketing perspective, the most relevant example is deepfake content. Under the AI Act, the deployer of an AI system must disclose when image, audio or video content has been generated or manipulated by AI in a way that constitutes a deepfake. According to the AI Act and the Commission’s draft guidelines, a deepfake is content that resembles existing persons, objects, places, entities or events and could falsely appear to be authentic or truthful.
This definition is significant for marketing because deepfakes are not limited to situations involving the imitation of a well-known person. AI-generated content that realistically depicts an existing location, event or product-use context may also fall within the scope of the deepfake rules where the recipient could mistakenly believe it to be genuine. In a marketing context, this could include an AI-generated video showing realistic “customers” using a product in a seemingly authentic setting.
The ICC guidance takes the assessment one step further from a practical perspective. Where AI is used to create or materially alter the image, voice or other likeness of a real and identifiable person for marketing purposes, the person’s permission should generally be obtained and the limits of that permission respected. In practice, marketers must therefore assess two separate questions. They must determine whether they are entitled to use content depicting the person and whether the use of AI must be disclosed to the audience. Article 50 of the AI Act does not directly address consent, as its focus is on transparency. The Commission’s draft guidelines nevertheless point out that deepfake content may also raise issues relating to data protection, intellectual property rights and personality rights.
Disclosure must be assessed from the recipient’s perspective
Another important consideration is the target audience. Both the ICC guidance and the Commission’s draft guidelines on Article 50 emphasise that the clarity of a disclosure must be assessed from the audience’s perspective. In marketing directed at children, older people or other potentially vulnerable groups, the threshold for disclosing the use of AI may in practice be lower. The disclosure must be presented in a way that the particular audience can understand. A purely technical label, a sentence hidden in the terms of use or a vague reference to AI may not be sufficient. According to the Commission’s draft guidelines, the information must be provided clearly and prominently no later than at the time of the first interaction or exposure. It must not be hidden in user instructions or behind a menu structure.
The draft Code of Practice develops this idea further. It suggests that labels for deepfakes and certain AI-generated texts should be easily noticeable, accessible and appropriate for the relevant type of content. The draft also proposes the development of a common EU-wide AI icon and the possibility of a second layer of information explaining in greater detail which elements of the content have been generated or manipulated by AI. From a practical perspective, another interesting proposal is that the label should, where possible, travel with the content when a video or image is shared across different channels.
Responsibility for AI use must be built into marketing processes
For businesses, this means that the use of AI in marketing is not merely a choice of tool for the creative team. The ICC guidance emphasises that the marketer remains responsible for its marketing even where the campaign has been implemented with the assistance of an agency, influencer, platform operator or AI tool. Organisations should update their internal training and instructions so that everyone involved in marketing understands their responsibilities. The same objective is reflected in the AI literacy obligations under the AI Act. Businesses must ensure that personnel using AI have an adequate understanding of its opportunities, limitations and risks.
In practice, a responsible marketer should address three fundamental issues. First, the business should identify where AI is used in the campaign and whether the end result must be labelled under the AI Act. It should then assess whether failing to disclose the use of AI could create a misleading impression, including in situations where the express disclosure obligations under the AI Act do not apply.
Finally, contracts with advertising agencies, influencers and technology providers should support compliance. The marketer should know when AI has been used to create the final output so that it can fulfil its own obligations where necessary.
The use of AI in marketing is not inherently problematic. On the contrary, it can improve quality, accelerate production and create new possibilities for creative work. However, the more authentic AI-generated content looks and sounds, the more important it becomes to consider whether the recipient understands what they are being shown. In this respect, the ICC guidance and Article 50 of the AI Act point in the same direction. Both serve as reminders that trust lies at the very heart of marketing. Where the use of AI undermines that trust, technical efficiency can quickly turn into legal risk and reputational harm.
Businesses should begin preparing early
Final interpretation and enforcement practice are still developing. The Commission’s guidelines on Article 50 and the Code of Practice remain in draft form. The ICC has also stated that it will update its guidance as technology and industry practices evolve. Businesses should nevertheless begin preparing for the obligations now by updating their processes, internal guidance, contracts and approval procedures. From August 2026 onwards, transparency will in many situations become an increasingly concrete and directly applicable legal obligation.
Katri Aarnio
Counsel
+358 50 306 2031
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AI tools are developing at a remarkable pace. Not long ago, an AI-generated image was easy to recognise, but today, the best AI-generated images are so convincing that they can be indistinguishable from genuine photographs. AI can also be used to produce text, audio and video, offering creative industry professionals significant opportunities to accelerate content production and develop new forms of expression.
At the same time, the use of AI raises numerous legal questions. In this blog post, I discuss the legal considerations that companies operating in the creative industries should take into account before introducing AI tools and using them as part of their creative work.
Who owns AI-assisted content, and how can it be protected?
A key question is whether the creator obtains an exclusive right to use and license material produced with the assistance of AI, or whether the result remains freely available for anyone to use. There is no straightforward answer, as it depends on the extent of the human creator’s own creative contribution to the work.
Copyright belongs to the person who creates a work, provided that the work is sufficiently independent and original. Copyright protection always requires a creative contribution by a human, and the assessment is made on a case-by-case basis. Copyright never protects an idea as such, but only the specific form in which the idea is expressed.
When a creative professional uses AI as a tool in their work, the existence of copyright is assessed according to these same principles. Copyright does not arise where a person gives the AI only a general instruction and the AI produces the final content entirely without any creative contribution from the user.
The situation is different if AI is used as part of a broader creative process. If the creator uses AI, for example, to support brainstorming, then creates the content themselves and uses AI only for final refinements, the work is likely to contain enough of the creator’s own creative contribution to qualify for copyright protection.
The use of AI should also be documented in case of potential disputes. Retaining the creator’s own drafts and the prompts used can make it easier to demonstrate which parts of the final result are based on human creative work.
If content is created using generative AI and the result does not qualify for copyright protection, protection may in some cases also be sought through trademarks. For example, Moomin Characters has protected Moomin characters as trademarks. However, it is important to note that a trademark only provides protection in specified classes of goods and services and within a particular geographical area. It does not protect the creative content as such. Its scope and purpose therefore differ from those of copyright protection.
If a creative project involving extensive use of generative AI is being planned, trademark protection may nevertheless be worth considering alongside copyright as a complementary form of protection.
Can AI-generated material be used freely?
Material created with AI is not automatically free from third-party rights. The key questions are which AI service was used to produce the material and how liability has been allocated in the service’s terms of use.
Some AI services use only licensed training data or other material that is not protected by copyright and contractually assume responsibility for ensuring that the materials generated by the AI do not infringe third-party copyrights. In such cases, the service provider bears responsibility for the output to the extent agreed in the terms of use, and the user’s legal risk is substantially lower.
Many widely used services, however, have been trained on extensive datasets collected from the internet, which may also contain copyright-protected material. In most services, the service provider does not contractually assume responsibility for ensuring that the generated content does not infringe third-party rights. Instead, responsibility for using the content remains with the user. Material produced using such services therefore requires careful review before publication.
In summary, there is no universally applicable answer as to whether AI-generated materials may be used freely. The allocation of responsibility depends primarily on the service used and its terms of use, which should be reviewed before AI is introduced as part of content production.
Can confidential information be entered into an AI service?
As a general rule, confidential information should not be entered into an AI service unless the service is specifically intended for business use and its terms and information security have been carefully assessed.
For business purposes, companies should use business or enterprise versions of generative AI services unless they operate a local AI solution on their own servers. In consumer services, such as the free and Plus versions of ChatGPT, materials and prompts entered into the service may, in accordance with the terms of use, be used to train the AI model. In addition, the service provider may reserve broad rights to use and even share material uploaded by users for purposes other than AI model training.
This means that if a company’s employees use consumer licences in their work, they may compromise the confidentiality of information by entering confidential material into the service.
The practical risk may arise, for example, where a screenwriter or copywriter uses a free consumer AI service to refine a text and enters an unpublished script or campaign concept into the service. Under consumer licences, the content may be used to develop AI models, meaning that the material is no longer under the company’s exclusive control. Even if the content does not appear elsewhere in an identical form, there is a risk that recognisable features of the material may be used as part of outputs generated for other users.
It is also important to note that other risks do not disappear even if the use of content for training purposes can be prohibited separately in the service settings or terms of use. Under consumer licences, service providers often do not provide binding guarantees regarding the security of the service. Information entered into the service may therefore be exposed to data breaches or other information security incidents. Protecting confidential information requires selecting a licence suitable for business use and assessing the service’s terms and information security before introducing the AI service.
Can personal data be entered into an AI service?
If personal data, such as a person’s image, voice or name, is entered into an AI service, the General Data Protection Regulation, or GDPR, applies.
The company is responsible for ensuring that the licensing terms of the AI service have been carefully assessed. As part of its compliance with the GDPR, the company must ensure, among other things, that material uploaded to the service is not used to train the AI, that it is possible to enter into the data processing agreement required by the GDPR with the service provider, and that the AI service provides appropriate security for the protection of personal data. In practice, the use of an AI service will generally also require a data protection impact assessment.
The use of AI services under free consumer licences will generally not comply with the GDPR, as service providers often also use uploaded material for their own purposes.
Is it permissible to use AI to generate images or voices of real people?
Particular attention is also required where AI is used to produce images of real people or to create AI-generated copies of a real person’s voice. A person’s image, voice and other identifying features constitute personal data. AI-generated material may also be considered personal data if a specific individual can be identified from it. In such cases, all GDPR requirements apply, including the requirement to inform the individual about the processing of their personal data and the requirement to have a lawful basis for the processing.
In content production, it is also important to recognise that using a person’s image or voice for commercial purposes requires that person’s consent. In 2025, the Helsinki Court of Appeal ordered an underwear company to pay Jasper Pääkkönen EUR 300,000 in compensation for the unauthorised use of his name, image and voice in an extensive advertising campaign. The judgment is not yet final, and the Supreme Court has granted leave to appeal. The obligation to obtain consent also applies where the person’s image or voice has been generated using AI.
When must AI-generated content be labelled as a deepfake?
The EU’s new AI Act introduces transparency requirements concerning deepfakes. The Act will become applicable gradually, and the provisions concerning deepfakes will apply from 2 August 2026.
Deepfakes are AI-generated or AI-manipulated image, audio or video content that resembles existing people, objects, places, entities or events and may falsely appear to the recipient to be authentic or truthful. The transparency obligation is therefore not limited to deepfakes depicting people.
Under the AI Act, deepfakes must be clearly labelled as having been artificially generated or manipulated. However, the Act includes an exception for creative works. Where the content forms part of an evidently artistic, creative, satirical, fictional or similar work or programme, the disclosure may be made in a manner that does not interfere with the display or enjoyment of the work.
For example, a documentary-style television production may use highly realistic AI-generated images or videos to illustrate historical events. If the context does not otherwise indicate that the material is artificial, viewers may believe it to be genuine archival footage. In such a case, the transparency obligation under the AI Act must generally be considered. However, the exception for creative works allows the use of AI to be disclosed in a manner appropriate to the nature of the work, for example in the programme’s end credits, provided that the audience is not left with a false impression of the authenticity of the content.
A breach of the transparency obligation concerning deepfakes may result in an administrative fine under the AI Act.
Checklist for creative industry professionals
Rights: ensure that your own creative contribution is sufficient if you want the final result to qualify for copyright protection.
Documentation: document the use of AI and your own creative contribution.
Terms of use: review the service terms and determine what rights you receive to the generated content and who is responsible for potential infringements.
Business-level licences: only use business-level licences for professional purposes and enter into a data processing agreement where necessary.
GDPR and consent: using a person’s image or voice requires compliance with data protection rules and, for commercial use, the person’s consent.
Deepfakes: if content has been artificially generated or manipulated, ensure that the disclosure requirements of the AI Act are met.
Would you like to discuss the legal questions surrounding AI? We help companies assess the legal risks and opportunities associated with the use of AI in the creative industries and in other AI-enabled business operations.
Lila Kallio Counsel
+358 41 465 1365
Katri Aarnio Counsel
+358 50 306 2031
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The EU Data Act became applicable on 12 September 2025 and introduced new obligations aimed at making it easier for customers to switch service providers. The objective is to prevent so-called vendor lock-in and require cloud service providers to compete on service quality and pricing, rather than allowing customers to become tied to a service because of technical or contractual barriers.
The Data Act requires cloud service providers to enable customers to switch services with a notice period of no more than two months. The rules apply to services including IaaS, PaaS and SaaS.
However, the reform directly affects the core of many SaaS companies’ business models. Many SaaS services are sold under fixed-term agreements, often for one year or several years, and the business model is based on annual recurring revenue, or ARR. Service providers typically offer a lower monthly price to customers who commit to annual billing. The possibility of switching service providers during the contractual term under the Data Act therefore raises questions about the binding nature of fixed-term agreements.
Does the Data Act allow a fixed-term SaaS agreement to be terminated during the contractual term?
The Data Act does not create a general, entirely unrestricted and consequence-free right of termination in all circumstances. It does, however, give customers the right to switch service providers or move to their own solution with a notice period of no more than two months, and generally a transition period of one month, at limited cost. This applies even during the term of a fixed-term agreement where the cloud service falls within the scope of the Data Act. In practice, the outcome comes very close to a “free right of termination” in the situation that matters most to the customer, namely when the customer wishes to switch providers and take its data with it.
During the switching process, the previous service provider must continue providing the service and assist with the transfer of data. Once the switching process has been completed, the agreement and the customer’s payment obligation come to an end. The agreement will therefore generally end three months after the customer gives notice of its intention to switch, as the notice period is two months and the transition period is usually one month.
Can a SaaS provider charge for early termination or assistance with the switching process?
The Data Act permits two types of charges that a service provider may, to a limited extent, impose in connection with the switching process: switching charges and early termination penalties under fixed-term agreements.
During the transitional period ending on 12 January 2027, the Data Act allows service providers to charge fees for switching services where those fees are based on direct and demonstrable costs. After 12 January 2027, switching charges will be prohibited altogether. Customers may not be charged for transferring their data to another cloud service or to their own environment to the extent that the transfer falls within the minimum obligations imposed by the Data Act. Even after the transitional period, customers may purchase additional services that go beyond the minimum obligations, and the service provider may charge for those services where they are provided at the customer’s request and the customer has accepted the price in advance.
The Data Act also allows a SaaS provider to include a “proportionate” penalty in the agreement for terminating a fixed-term agreement before the end of its contractual term. The customer must be informed of such a penalty before the agreement is concluded.
The Data Act does not define what “proportionate” means. In practice, however, the penalty must be proportionate to the actual costs incurred by the service provider, such as investments made on the basis of the agreed contractual term or expenditure relating to the implementation of the service. The penalty may not be used as a concealed switching charge or as a means of preventing switching by making it financially difficult.
From the provider’s perspective, it is therefore necessary to consider which costs arise specifically because the agreement ends earlier than expected. The provider must also assess whether the penalty has been calculated on the basis of those costs or whether its actual purpose is to keep the customer tied to the service. If the latter is the case, the arrangement is likely to be risky under the Data Act.
What contractual obligations does the Data Act impose on SaaS providers?
The Data Act requires SaaS providers to include contractual terms concerning the switching of services in their service agreements. When updating their agreements, SaaS providers may choose to use the model contractual terms published by the European Commission on 19 November 2025. The use of the model terms is voluntary, and the Commission’s objective is to help parties comply with the Data Act in a consistent manner.
It should also be noted that on 19 November 2025, the Commission published its Digital Omnibus proposal, which would introduce lighter cloud switching obligations for small service providers and customised services. The proposed relief would apply to agreements concluded before 12 September 2025. At this stage, it is only a Commission proposal, and its final content may still change.
What should companies do now?
Service agreements should be updated to include the contractual terms concerning switching service providers required by the Data Act.
SaaS providers should consider whether their service agreements should include a penalty for the early termination of a fixed-term agreement.
In the longer term, providers should reconsider their business models in anticipation of customers being able to switch to competitors more easily and at a lower cost. From the SaaS provider’s perspective, the focus of revenue generation will increasingly shift towards the value of the service, customer experience and continuous customer satisfaction.
We have familiarised ourselves with the requirements of the Data Act and assisted SaaS providers in updating their contractual terms accordingly. Should you require advice or practical assistance in updating your own terms or exercising the right to switch services, our contracts team is ready to help.
Lila Kallio Counsel lila.kallio@legalfolks.fi
+358 41 465 1365
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