How AI is Rewriting the Future of Marketing and Sales:  Using LLMs Properly, Ethically, and Legally

by Melissa Rogozinski A version of this article first appeared in the October 9, 2023, issue of Law Journal Newsletters and in the October […]

by Melissa Rogozinski

A version of this article first appeared in the October 9, 2023, issue of Law Journal Newsletters and in the October 11, 2023, issue of  Check out the podcast interview with Melissa Rogozinski, hosted by Jared Correia, published by Above the Law.  On December 12, 2023, we presented a 1.0 hour CLE titled, ” Generative Artificial Intelligence and Copyright Concerns: Legal Marketing and Beyond” for West LegalEd, which is embedded below.

When ChatGPT made its public debut on November 30, 2022, I waited with bated breath and trained caution for perception and use of the tool to evolve.  The hype of AI reminded me of the early days of Snapchat technology when users were led to believe that sent pictures would magically disappear after just a few seconds.  Those of us in legal tech knew better.  Sure enough, it was less than a month later that a forensic specialist showed up on The Today Show to tell parents that, for twenty-five dollars, he could image their kids’ smartphones and reveal that all of those “deleted” pictures were, in fact, safely stored in a hidden file called “.nomedia.”

I expected a fallout with AI, too.

Patience is a Virtue.

Patience is a virtue because it allows us to remain calm and focused during challenging circumstances. It quiets impulsivity and allows us to persevere, make better decisions, and, ultimately, achieve our goals.

Never one to jump on board with trends, I took time to read, listen, and ask questions.  Besides, AI wasn’t new to law or legal tech. (Think predictive coding.) It just had a shiny new package as an LLM. (ChatGPT, Bard, and Claude are branded LLMs.)

There was a plethora of articles from media sources and colleagues on LinkedIn addressing a variety of performance and legal issues as well as benefits to using AI.  The amount of information being published daily was overwhelming.

Standing still and waiting hasn’t been easy, but the patience totally paid off. Now, I understand some of AI’s limitations as well as ways it can be leveraged to propel marketing and sales activities.

Testing is an Art.

Testing is essential to if you want to achieve the best possible results for a product or service.  It is a process that requires the right balance of creativity, intuition, experience, and judgment.

Before determining how we might or might not leverage LLMs in our services, I ran several tests on my own company.  The first thing I used it for was to write the body copy for an email campaign to promote our 2023 Social Media Calendar.  It didn’t know my voice yet, so I used the “Regenerate” feature several times before deciding to write it myself, with elements of what the tool had provided.

Next, I wrote an article to celebrate our fourth anniversary, A Seat at the Table: Who, What, When, Where and Why. This is where I discovered how these LLM’s regurgitate information and create redundancies. It also gave me some statistics, which I decided not to use based on the evidence that these tools often hallucinate and fabricate information.

I also ran our company website through ChatGPT-3 and Bard, twice each, asking for an SEO strategy.  It’s very clear from all the content on our website that we provide marketing and sales consulting for businesses in the legal industry.  However, both times, each tool provided an SEO strategy for a spa based on an old tag line (Rise | Renew | Regenerate) from 2019.

The last, and most important, step I took in testing was to ask a few of my legal marketing colleagues to teach me how they use AI in their work.  This is where I learned about the variety of available AI tools for marketing, prompt engineering, and confirmed that it’s a great tool for ideas but never a final product.

Results are Impressive.

What I have learned through patience, research, and testing is that AI is a great technology to help brainstorm ideas for all kinds of marketing and sales content.  For best results, you’ll want to upgrade to a version of the AI tool that allows you to input custom directives.

Set up your bio so it knows you and will learn how to communicate with you through continued prompting.  You’ll also want to set up very specific instructions for a variety of content, like blog articles, social media posts, email campaigns, marketing flyers, and sales communications.  For each, specifically define your target audience, voice or tone for the copy, sections of content (intro, body, summary, bullet points), total word count, and CTAs.  Don’t forget to tell the tool to remove redundancies.

Here are a few more ways marketing and sales can leverage the power of LLMs:

·  Alternative titles for blog articles for SEO when it’s being republished in various versions and channels

·  Q&A script and suggested titles for a video or podcast interview

·  Talking points, agenda, and title for a webinar or presentation

·  Description for a new social media channel

·  Social media copy for company page posts using the company’s persona

·  Social media copy for personal profile posts using your voice

·  A short, cold sales outreach email with CTA

·  SAP research for qualifying a prospect on budget, identifying stakeholders, and competitors.

Just remember, however, AI-produced content is not final, and it is your responsibility to tailor the results for accuracy, quality, and voice before publishing in final form.

Copyright is not Guaranteed.

In a recent poll, we asked respondents, “If a human is using ChatGPT to create content, can they claim copyright?”  The answer to this question is vital to the relevance and survival of creative and marketing services professionals.

Can AI claim ownership?

Doug Austin of eDiscovery Today reported that, in Thaler v. Hirshfeld, both the USPTO and the U.S. District Court for the Eastern District of Virginia determined that an artificial intelligence (AI) machine cannot qualify as an “inventor” because the Patent Act defines an inventor as a natural person.

Evan Brown, an IP and Technology attorney in Chicago, recently wrote between AI and a human.  U.S. copyright law (at 17 U.S.C. § 101) considers a work to be a “joint work” if it is made by two or more authors intending to mix their contributions into a single product.  However, AI systems are not generally recognized as authors and, therefore, cannot claim any right to the work.

Can a human claim ownership?

LLMs are using databases of pre-existing, human-generated content that, by their very nature, are already copyrighted.  Therefore, AI-generated content cannot double-dip and claim copyright again. An August 23, 2023, is a good read on this issue. Whitfield observes, however, if a human significantly contributes to or edits content generated by and LLM, then the human may be able to claim copyright on their portion only.

Digging deeper into specific copyright issues for marketers, creatives, and writers, reported substantial intellectual property issues for generative AI when the winner of the 2023 Sony World Photography Award had to forfeit their prize after it was revealed that generative AI had been used to create the winning piece.

Who really can claim ownership?

Most recently, the Writers’ Guild of America solidified a deal specifying the parameters in which AI may or may not be used and protects the rights and work of the scribes and writers. claims the effects of this deal “will echo in industries far beyond Hollywood.”

The ability to claim copyright seems crystal clear:  content must be original, created by a natural human, and cannot simply be copied from existing databases.

In the poll referenced earlier, fifty-three percent (53%) responded, “No”, a human cannot claim copyright over LLM-created content. Research supports this outcome.

LLMs are the Future.

Stephanie Wilkins said it best at a recent CLE about AI in the modern law firm:  “ Lawyers who don’t learn to use AI will be replaced by lawyers who do.”  Substitute the word “lawyers” with paralegals, marketers, sales professionals, etc.

LLMs are great tools and are here to stay, but you must have your own hands on the input and output before the product is usable for public consumption in marketing or sales.  Remember, LLMs are artificial intelligence, not emotional intelligence. They are never going to know your audience the way that you do.  They will never have personal experiences – personally or professionally – to infuse into communications and storytelling that inspire and invoke connection and action. And the most important thing, if you’re creating any kind of content or images with an LLM, you very likely cannot claim copyright because it is merely repurposing pre-existing content.

Learning how to use LLMs properly, ethically, and within legal parameters can help you accelerate your thinking and productivity.  Mastering these tools should fuel a sense of empowerment, rather than fear, about the future of your creative career.

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