Have you seen those Kilo Code AI ads around San Francisco, the ones with the cartoon version of Charlie Day from the iconic “Pepe Silvia” scene in It’s Always Sunny in Philadelphia? Sure you have: The ad, much like the meme, features a bug-eyed man in a short-sleeved shirt and striped tie frantically gesturing to a cluttered mind map tacked to the wall behind him, next to a meme-y slogan that calls out a competitor: “Me trying to figure out Cursor’s pricing.” This image is plastered on billboards, buses, and bus stops all over the city.
But you know who, in all likelihood, hasn’t seen it? Charlie Day himself. Day’s management team at 3 Arts Entertainment, the Beverly Hills-based talent and production company, said they “definitely did not know” about the campaign when Gazetteer SF called to inquire about it.
A representative from FX, Sunny’s longtime network, was also unaware of the Kilo Code campaign when contacted on Nov. 13; however, the representative said she didn’t work directly on Sunny, so she acknowledged she may not have all pertinent information.
Two weeks ago, Maya Spivak, the founder of a marketing agency called Marketing.fan who was contracted by Kilo Code to create and launch the campaign, posted on LinkedIn about the ads, explaining that she and the Kilo team executed the campaign in just two weeks. She called it “the fastest and most intense whirlwind of a campaign [she’s] ever been a part of.”
In her post, Spivak explained that the cartoonized still from Sunny was “prompted into conception” with AI, but the final product was hand-drawn by illustrators. Spivak did not respond to our requests to comment on this campaign.
Kilo Code is an open-source, downloadable code editor extension that integrates with AI models. It’s a remote-first company with offices in San Francisco and Amsterdam, according to its website.
Vivian Schafbuch, publicity coordinator for SAG-AFTRA, declined to comment on the Kilo Code campaign for this story. That said, a representative from the legal division at SAG-AFTRA told Gazetteer SF over the phone that they often deal with AI-related disputes, especially following the monthslong Hollywood strikes in 2023 that were primarily concerned with actor and writer compensation as studios began to use generative AI.
The agreement that ended the SAG-AFTRA strike included detailed guidelines for how to notify, request permission from, and compensate any actor whose likeness, captured while shooting for a TV show, film, or video game, is used in a “digital replica” by a studio.
While Kilo Code is not a production studio, it is using a digital replica of Day in its ad campaign.
Corynne McSherry, the legal director at the Electronic Frontier Foundation, said she sees two potential legal issues in Kilo Code’s campaign.
“There’s copyright issues here, and there’s also potentially publicity rights issues, because people have a right to control how their image is used,” McSherry said.
Of course, the fact that this particular still is a meme and has been making the rounds online for years might help Kilo Code’s case should FX, 3 Arts, Pepe Silvia, or any other Day-associated entity decide to take action. McSherry said if she were Kilo Code’s lawyer, she would argue it was fair use, a common legal pathway to use a copyrighted image without permission when used for specific purposes, like commentary or criticism, or presented in a transformative way.
“There is certainly a fair use argument to be made,” she said. “But I don’t think it’s a slam dunk either way.”
Gazetteer SF reached out to Kilo Code’s internal marketing and support teams, as well as to Spivak, multiple times. Unfortunately, this proved as fruitless as knocking on Carol in HR’s door.
