The Digiday Podcast – Dec 16, 2025
Episode: The Disney-OpenAI Deal and Generative AI Copyright Concerns
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This episode explores the intersection of generative AI and intellectual property (IP) rights, focusing on the recently-announced Disney-OpenAI deal. The hosts, Kamiko McCoy and Tim Peterson, delve into the implications for brands, agencies, and legal frameworks. Their featured guest is Rob Driscoll, a partner at Davis Wright Tremaine, who unpacks how companies are navigating legal ambiguities around copyright, trademarks, and AI-generated content.
Key Discussion Points & Insights
1. Disney's Deal with OpenAI: Shifting IP Dynamics
- Overview: Disney announced a landmark agreement with OpenAI, allowing users to generate Sora videos starring over 200 Disney characters (but excluding talent likenesses/voices).
- Surprising Move: Both hosts note Disney’s prior strictness in defending its IP (e.g., recent lawsuits against Midjourney), making this a notable new direction.
- Quote: “I feel like this conversation was really perfectly timed because then when the Disney OpenAI deal was announced a day after we recorded with Rob, I had all of these new questions in my head…” (A, 00:46)
- Possible Motives: The hosts speculate about Disney’s reasons, including first-mover advantage, setting industry precedents, and preserving audience relevance as AI-generated content proliferates.
- Quote: “I imagine there's a first mover advantage to Disney doing this…” (A, 05:34)
- Quote: “If all we're doing is watching AI stuff and not Disney, then Disney loses that connection with audiences.” (A, 06:56)
- Guardrails & Exclusions: Explicit boundaries set to exclude human likenesses (likely to avoid legal and PR battles like those involving Scarlett Johansson and others).
2. AI Companies' Business Models & The Role of Ads
- Circular Deals: Hosts discuss speculation around the financial arrangements—Disney investing in OpenAI while OpenAI pays Disney for IP access.
- Ad Integration Uncertainty:
- Google’s public denial of AI chatbot ads (at least for now), despite internal testing and accidentally leaked screenshots.
- OpenAI’s internal “code red” shifting ad plans, with similar challenges faced by others like Perplexity.
- Quote: “Anytime you have an executive at a company come out and very publicly declaim a story...you always try to read into the language of current plans.” (A, 10:23)
- Future Inevitable: Consensus that monetizing these platforms with ads is only a matter of time.
- Quote: “They don't have a choice because my thing always comes back to like, you're burning through a ton of cash, man. At some point you're going to have to put that product out there.” (B, 15:13)
3. Legal Landscape: Rob Driscoll’s Expert Take on AI, Copyright, Trademarks, and Branding
3.1. Evolving Brand Attitudes Toward Generative AI
- Rapid Shift: Brands have moved from outright bans to requiring agencies to use AI, driven by efficiency and cost savings, despite initial legal worries.
- Quote: "Instead of prohibiting the use of generative AI, they're mandating it. ... We're requiring them to use it because we think that's the most cost-effective way to get the job done." (C, 19:02)
- Industry-Specific Attitudes: More conservative sectors (finance, kids' brands) remain cautious; others are more open.
3.2. IP Risks in AI Usage
- Copyright Exposure: Still unclear if using AI tools trained on copyrighted material exposes brands to liability, especially if outputs mirror existing works.
- Quote: “There is some risk…if a person or company generates something new that is basically the same as an existing piece of work, that could be copyright infringement, even if there's not an intentional copying happening.” (C, 25:08)
- Best Practices: Keeping detailed prompt records, discouraging explicit imitation in prompts, and employing human review are common mitigations.
3.3. Protection for AI-Generated Brand Assets
- Unclear Ownership: Copyrightability of purely AI-generated assets remains undetermined and likely hinges on “substantial human involvement.”
- Quote: “There are questions about whether gen AI outputs are copyrightable. Probably ultimately it will depend on the level of human involvement in the product.” (C, 28:02)
- Trademark Sensitivity: Brands tend to be more protective over mascots, logos, and trademarks; use outside their control (especially in generative platforms) could harm trademark protection.
- Quote: “Trademarks have to be used consistently in a manner that's under the control of the trademark owner... there is a technical legal argument that that's actually diminishing the legal protection…” (C, 30:03)
3.4. User-Generated AI + Brand Collaborations (e.g., Product Placement)
- “AI Product Placement” Risk: Allowing open user generation with brand assets poses significant control and legal risk. Most contracts with enterprise AI providers prohibit sharing input data across clients.
- Quote: "...That would be a big risk for the brands to be doing that, to allow kind of like AI generated product placement in user-generated videos." (A, 33:01)
3.5. Contract Language & Talent Likeness
- Contract Evolution: New contracts—especially those with creative talent—increasingly address AI specifically, often prohibiting unlicensed replicas or derivative works.
- Quote: “They're being much more specific about whether or not the content can be used for any kind of AI model training…” (C, 41:27)
- Influencer/Creator Concerns: While influencers and agencies lag on AI clauses, actors and creative unions are pushing for strong protections.
- Quote: “Actors would like to know that their livelihood is not going to be seriously undermined by the capability of replicating them without their consent.” (C, 42:46)
3.6. Legal Precedents & What Happens Next
- Ongoing Uncertainty: Few precedents set so far, mainly litigation over AI model training data rather than end-content infringement.
- Quote: “The focus really has been more on the AI training.” (C, 47:47)
- Regulation Lag: Agencies like the US Copyright Office are still working on new guidance.
Notable Quotes & Their Timestamps
- Disney’s Contradictions:
- "A few hours after [Disney] announced this deal with OpenAI, Disney said, oh, yeah, and by the way, Google, cease and desist. Like, no, you cannot be using any of our IP in any of your generative AI." (A, 02:43)
- On Why Disney Moved First:
- “Disney loves to control. Yeah. And so being a first mover on this gives it [an] ability to control.” (A, 07:01)
- On Copyright Clarity:
- “Early on there was a lot of activity around brands instructing their ad agencies...do not use any generative AI tools...That has kind of flipped...” (C, 19:02)
- On Prompt Documentation:
- “I remember talking to agencies ... and they were all saving every prompt. And that was the mandate from the top.” (A, 24:11)
- On Ownership of AI-Generated Content:
- “The final product is going to reflect some other significant creative input from a person...that helps as well.” (C, 26:10)
- On Influence Contracts and Protections:
- “A lot of the talent side are concerned and trying to restrict, to expressly restrict those kinds of activities.” (C, 42:46)
- Legal Precedents:
- “There are some questions about the extent of copyrightability of generative AI output. So that's still a bit murky as well.” (C, 46:07)
Important Segment Timestamps
- Ep. Start – 03:30: The Disney-OpenAI deal reactions & industry context
- 03:30 – 09:29: Disney’s strategic motives, previous IP deals (e.g., with Epic Games/Fortnite)
- 09:29 – 15:41: AI chatbot ads debate—Google, OpenAI, Perplexity, and the ad business model
- 16:41 – 22:51: Rob Driscoll on brand legal attitudes and the evolving role of AI
- 23:44 – 27:30: Copyright risk when using generative AI, best practices
- 28:02 – 33:41: Ownership of AI-created assets and contract nuances
- 33:41 – 36:08: Risks and realities of “AI product placement”
- 36:08 – 41:27: Contract evolution, NIL rights, and adaptation to the AI era
- 44:54 – 47:47: Legal precedents, ongoing lawsuits, and lack of clarity
- 48:03 – End: Closing thoughts and next steps
Tone
The hosts maintain a conversational, curious, and lightly irreverent tone, balancing technical insight with pop culture references and playful asides (“A show for those people or a show for Mickey Mouse's lawyers?”). Rob Driscoll’s contributions are measured, practical, and precise, frequently noting the case-by-case nature of legal risk in this fast-evolving field.
Summary Takeaway
This episode of The Digiday Podcast serves as a wide-ranging primer on the state of generative AI and IP law in marketing and media. The sudden shift in Disney’s approach—from litigation to licensing—reflects the industry’s acceleration toward embracing AI despite unresolved legal questions. As companies rush to adapt, the conversation highlights the need for evolving contracts, vigilant brand protection, and the inevitability of ads (and legal test cases) in the generative AI space. As summed up by Rob Driscoll, “It depends”—but that’s changing quickly.