The rise of generative AI systems such as ChatGPT, MidJourney, and Stable Diffusion has significantly altered the creative landscape. As a result, there are increasing questions about the copyright protection of works that are partially or entirely generated by AI. This blog addresses whether such works can qualify for copyright protection and the conditions that apply in such cases.
What is copyright?
Copyright protects the intellectual creations of the creator. This can include music, literature, art, and even software. In most countries, copyright arises by operation of law without the need for formal registration.
Whether a work actually enjoys protection is determined by the courts. For this, the work must have an “own and original character” and bear the “personal stamp of the creator”. This assessment implies the presence of human creativity. But what happens when a work is (partially) created with the help of AI?
AI and copyrights
Generative AI works based on user input, often in the form of text commands (prompts). The AI then generates an image, text, or other work based on the data the system was trained on. A key issue in granting copyrights is whether there is enough human intervention to qualify the work as copyrightable.
Foreign case law provides some guidance on this question, but courts generally remain cautious about granting protection to AI-generated works. AI systems are autonomous and unpredictable, often lacking creative control by a human. However, recently in a case in China, an AI-generated work was granted copyright protection because the human user had given very specific instructions and further edited the work. This is seen as a sign that AI systems, like cameras, can be considered tools in the hands of a human creator.
When does human creativity come into play?
To qualify for copyright protection, a work must pass the “work test.” Therefore, it is essential to carefully document the creative process. The extent of influence you had as a creator plays a crucial role. This process can be divided into three phases:
- The concept phase: You instruct the AI with specific commands, determining the direction in which the work develops.
- The creation phase: At this stage, the AI generates the work. Your influence is limited, as the AI largely works independently.
- The editing phase: After the work is generated, you can make changes or refine parts, for example, using editing software like Photoshop or further adjustments via AI.
The question is whether actions in the concept and editing phases provide sufficient human input to give the work an “original and distinctive character” that bears the creator’s personal stamp.
A legal gray area
In practice, we currently find ourselves in a legal gray area. It is still unclear whether works generated with AI qualify for copyright protection. To increase the chances of protection, creators can do the following:
- Specific input: With precise prompts, it can later be demonstrated that you significantly guided the AI system toward a specific output. This increases the likelihood that your contribution will be seen as creative and significant.
- Editing: After the AI generates a result based on your prompt, further editing the output can enhance your creative input. Think, for example, of adjusting the result using Photoshop. This makes your personal imprint more evident.
- Documentation: Documenting your creative process can prove useful later in showing that your input was essential.
Judges are likely to look critically at the degree of human involvement. Did you guide the process from start to finish and only use AI as a tool? Then the chance of protection is greater. However, if you let AI generate a work entirely without further creative input, it is less likely that you can claim copyright.
Conclusion
The copyright protection of AI-generated works is a complex issue that continues to evolve. New technologies bring new legal questions. An important question is whether these technological developments fit within the current copyright assessment frameworks. What is clear is that, aside from these legal questions, AI is being used more and more in the creative process.
Do you work with AI and want to know if your creations qualify for copyright protection? Or do you have other questions about copyright and technology? Feel free to contact me; I’d be happy to help.
