AI clause: agreements on AI in a creative commission

Your agency delivers a campaign in which part of the imagery comes from an AI tool. The framework agreement says, as always, that all copyright passes to the client and that the work is free of third-party rights. There may be no copyright in that AI part to assign. And whether it is free of third-party rights, nobody knows for sure.

An AI clause settles what the standard contract leaves open. Liaise drafts and reviews such clauses under Dutch law, for agencies and creators and for the clients who commission them.

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Permission to use AI in a creative commission

Start with whether AI is allowed at all. Some clients rule it out entirely, for instance because they want a campaign they can protect against competitors. Others are fine with it for moodboards and sketches, but not in the final result. And the odd client actually wants the agency to use AI, because it is faster and cheaper.

Each of those choices calls for a different clause. A ban needs a definition of what counts as using AI, otherwise the automatic background removal in Photoshop falls under it too. Permission on conditions sets out for which parts AI may be used and with which tools. If the client requires AI, a different allocation of risk goes with it.

Without an agreement you are not in a vacuum. Under Dutch law, anyone performing a contract for services must exercise the care of a good service provider (article 7:401 of the Dutch Civil Code) and account for how the assignment was carried out (article 7:403(2)). A client who wants to rule out AI halfway through can do so by giving an instruction. The service provider must follow it if it is timely and reasonable (article 7:402), but what counts as “timely” then becomes an argument after the fact.

If you work with actors, there is a separate question: what may be done with their face and voice. On AI clauses in an actor’s contract →

What you assign if no copyright subsists in the result

Copyright only arises where a human makes creative choices, so not when a tool largely fills in the image by itself. In February 2026 a German court refused protection for three AI logos, despite a prompt of 1,700 characters.

A clause assigning “all copyright” then assigns nothing. That is a problem for the client, because copyright then offers no remedy against anyone who copies the AI part. For the agency or creator, the risk lies in the warranties, because “The contractor is the sole rights holder” cannot be made good for that part.

Two things help. Have the contractor record which parts were made with AI and which were devised or reworked by a human, so that the client knows what it is buying. And agree exclusivity over the AI part, so that the contractor does not reuse it for another client. That binds only the two of you and will not stop a third party who copies the image. Where copyright does pass, Dutch law requires a written agreement and a deed for it (article 2(3) of the Dutch Copyright Act).

More about assigning copyright →

Who is liable if AI output resembles existing work

Many AI tools exclude all liability for the output in their terms, which shifts the risk to whoever uses the image. Through the standard warranty in the contract it then ends up with the agency or creator, who usually have no control over it. A tool can return an existing character or photo almost verbatim, without the prompt giving any of it away.

A reasonable allocation starts with who made the choices. If the client chose the tool, wrote the prompt or supplied the reference image, it makes sense for the risk to lie there too. If the agency works with AI on its own initiative, the agency can indemnify, with a cap and an agreed check before delivery.

That check can stay simple: a reverse image search and a record of tool, prompt and date. If a cease-and-desist letter arrives, that is exactly what you need first.

Look at the tool itself as well. Microsoft indemnifies business users of Microsoft 365 Copilot, among others, against copyright claims over the output, provided the built-in filters are switched on and the user does not deliberately try to infringe. Other providers make similar commitments, on their own terms. Such an indemnity covers only the tool’s own customer, so the contract has to provide for it if the client is to benefit too.

A limitation of liability does not always hold. In the case of intent or wilful recklessness, relying on it can be unacceptable by the standards of reasonableness and fairness (article 6:248(2) of the Dutch Civil Code). Anyone who deliberately writes a prompt to copy a well-known work cannot simply hide behind a cap.

Dividing the deepfake disclosure duty between agency and advertiser

Since 2 August 2026, whoever creates a deepfake with AI must disclose it (article 50(4) AI Act). In advertising that covers more than you might think, including a realistic AI model who does not resemble any real person. In its guidelines of 20 July 2026, the European Commission places the duty on the agency operating the AI tool. A company that merely commissions an agency is not a deployer, unless it decides itself whether and how AI is used.

That division belongs in the contract, not least because practice is messier than the guidelines. The agency makes the video, but the advertiser posts it on Instagram itself, in a format in which the label drops out. Agree who designs the label, who checks that it stays visible in every version and who reports it if an advertisement is online without a label. A fine can reach 15 million euros or 3 percent of worldwide annual turnover, the lower of the two for SMEs.

When you have to label AI content →

Where the AI label goes in every version of your campaign →

Confidential briefs and client data in an AI tool

Paste a brief for a product launch that is still under wraps or customer data for a personalised campaign into a free AI tool, and you hand it to a party with terms of its own. Some consumer versions use input to train their models. On business plans this is often switched off, but you need to check per tool.

An AI clause can limit use to tools and accounts the client has approved. It can also make the confidentiality obligations in the contract apply expressly to input into AI systems. If personal data is involved, the GDPR applies as well, and you need a data processing agreement if the tool’s provider processes that data on your behalf.

Shielding delivered work from AI training

The other direction counts too. A creator may not want the delivered work to end up feeding an AI model. A client does not want the agency to train its own model on the campaign images and then use it for a competitor.

Article 15o of the Dutch Copyright Act permits training on protected work unless the rights holder has expressly reserved it, in a machine-readable way for work made available online. A creator can agree in the contract that the client will make that reservation on publication. Between client and agency, a contractual ban on using the material for training is enough. Model clauses for authors’ contracts are in our article on AI in the author’s contract.

AI clause lawyer for creative contracts

Liaise works on both sides of the table: for agencies and creators who want to avoid giving warranties they cannot keep, and for brands, publishers and producers who want to know what they are buying. We write an AI clause that fits how your commission is actually carried out, or adapt your terms and conditions. We also review the AI section in the contract the other party sends you.

Want to include AI arrangements in your contract or have them reviewed? Get in touch or call 020 675 88 21. Response within one working day.