How Creators Can Build Resilient Businesses Amid Technological Change

In this Q&A, Loeb partner John Kulback explores how creators and creator economy businesses can harness AI while navigating the latest legal and strategic challenges at the convergence of entertainment, media and technology. The discussion highlights how AI lowers production barriers, clarifies the distinction between creative assistance vs. creative substitution, and addresses copyright and publicity risks—all critical to creators for protecting intellectual property and ensuring that their content can be monetized and scaled.

Tell us about your practice and the types of matters you generally handle.

I advise clients across entertainment, media and technology on complex deals, strategic partnerships and scaling opportunities. My clients include publicly traded media and technology companies, major studios, financiers, creators, creator economy businesses and emerging technology companies. Drawing on my extensive experience as counsel, operator and executive, I work tirelessly to help clients build lasting, adaptable businesses.

How is generative AI lowering technical barriers for creators, and what are the implications for success in the creator economy?

Generative AI is becoming a great equalizer in entertainment and media. It is dramatically lowering the technical barriers that once separated amateur content from professional-quality work. Creators now have access to sophisticated editing, scripting and production tools, and without needing years of training, expensive equipment or big budgets. The result? Success will be even more dependent on authentic content, direct audience connection and compelling storytelling to differentiate from ever-increasing amounts of AI-created synthetic content.

What distinguishes “creative assistance” from “creative substitution,” and what are the key legal risks creators need to be aware of when using AI in their work?

The line comes down to whether human judgment stays at the center of the creative process. When AI handles routine tasks like editing, scheduling or formatting—it’s a tool. But when AI starts making substantive creative decisions with minimal human oversight, that's substitution, and the implications go beyond authenticity.

Under current U.S. Copyright Office guidance, human-authored works get copyright protection; purely AI-generated content does not. This creates a gray area for hybrid works—content created per the collaboration between humans and AI—raising questions about the extent of the human's ownership and the stability and extent of legal copyright protection. The more that creators can demonstrate that they (not AI) drove the substantive creative choices, the stronger their claim to owning the copyright in their content will be.

Using AI in content creation raises additional concerns that creators need to be aware of, including with respect to copyright and right of publicity. When AI trains on copyrighted material without authorization, both the output and the creator using it may face infringement claims even if the creator had no knowledge of the infringement, so it’s important for creators to understand the AI tools they are using.  Beyond copyright, the FTC is sharpening its focus on undisclosed AI-generated advertising, and deepfakes in sponsored content raise novel questions under endorsement and deception rules that weren't written with this technology in mind. Further, when a creator uses AI to replicate someone else's likeness or voice (knowingly or not), they very likely will need that person's consent due to right of publicity laws and protections.

The bottom line is that creators who want to use AI responsibly need to stay informed about these evolving legal frameworks and ensure that human creativity remains at the core of their work.

How is the shift from content-as-product to community-as-product reshaping the creator economy, and how can creators build business value that is legally defensible?

There's a fundamental shift happening from content-as-product to community-as-product (the network of relationships, interactions, and shared identity that forms around the content). Viral moments may create spikes in visibility, but they're temporary since today's algorithms increasingly favor 'interest media' (content tailored to user interest). Sustainable businesses are built on community relationships (which a creator can foster through email lists, membership communities and direct distribution channels etc.) that remain durable when algorithms change. As AI floods platforms with synthetic content, authentic human connection will become even more important for staying power.

From a legal perspective, creators who take the steps to put the right legal structures and frameworks in place can turn their content creation into real business assets that can be licensed, sold or leveraged in ways that relying on an algorithm's reach alone simply cannot match.