Generative artificial intelligence (AI) tools can produce a vast range of new content in a remarkably short period of time. The output may include software code, text, audio, images and video. For business owners like you the speed with which AI produces rems of work product in response to a user prompt is simply breathtaking, and can deliver remarkable business efficiencies never before seen in the information age. The initial appeal of generative AI content, however, needs to be balanced against the effect of using that content in your business. There are several dimensions to the use of generative AI, but one overriding question: To what extent can your business own the output under applicable law? To some extent this depends on the terms of service of the particular generative AI platform you use, and the allocation of rights set out in its governing terms of use. While this is indeed a part of the story, the user also needs to consider whether the AI output is legally capable of being owned by anyone under the applicable law.
We explore briefly below the answer to that question in various jurisdictions around the world based on the law and legal guidance available as of the date of this blog.
In the United States There is No Current Ownership of AI-Generated Works Under Copyright Law
At this moment, the default position under U.S. law is that copyrights in creative works of authorship fixed in a tangible medium of expression vest in the author immediately upon creation (17 US Code §201). U.S. copyright law, however, has repeatedly been interpreted to require human authorship for that copyright protection. For instance, in 2018 in the case of Naruto v. Slater, which is known as the “monkey selfie” case, the U.S. Court of Appeals for the Ninth Circuit held that a monkey does not own the copyright in a photograph it snapped of itself. In 2023, the U.S. District Court for the District of Columbia reaffirmed in Thaler v. Perlmutter copyright ownership does not exist in works generated by an AI tool that plaintiff Stephen Thaler developed. In this case, Mr. Thaler intentionally limited any contributions of human creativity, and instead emphasized the role of the machine.
Notably, based on existing case law and guidance issued by the U.S. Copyright Office –which is a primary source of guidance for persons seeking copyright protection of works developed with the assistance of generative AI tools – under current U.S. law, there is no ownership of AI generated works by anyone; not by the authors of the AI tool, not by the tool itself, and not by the individual who enters the prompts to generate the work. As such, these works are currently considered in the public domain without any copyright protection.
The U.S. Copyright Office has issued further guidance explaining that a work containing AI-generated material may also contain sufficient human authorship to support a copyright claim, where, for example, an author had creatively arranged AI-generated works, or substantially modified AI-generated works. In these cases, however, copyright will only protect the human-authored aspects of the work, which are independent of and do not affect the copyright status of the AI-generated material itself. The US Copyright Office requires identification of AI-generated content and human-generated content in works submitted for registration so that protection will be granted to the human-authored content only.
In its registration decision regarding the comic book “Zarya of the Dawn” the Copyright Office denied copyright protection for images created using the generative AI art platform called “Midjourney,” but granted copyright registration for the text and the selection and arrangement of images and text where the applicant attested to sole responsibility for those elements. In its copyright guidance on AI-generative work the Copyright Office has reaffirmed that protection remains for underlying original works, even where they’re enhanced by technological tools. The Copyright Office noted in its guidance that it will continue to monitor this new technology and may issue further guidance in the future. That is almost certain. The current guidance around sufficient human authorship ultimately could support a future award of copyright protection for AI-generated works, or portions or variations of such works. For now, however, there is no assurance of protection for AI-generated works under U.S. Copyright Law.
In the European Union There is Possible Ownership of AI-Generative Works Under EU Law But None Recognized Thus Far
EU copyright law is a patchwork of 13 directives and 2 regulations. None of this legislation, nor the upcoming EU AI Act, directly addresses the ownership of AI-generated works. Outside the legislation, there is little in terms of relevant EU-level case law. The Court of Justice of the European Union (“CJEU”) does provide some limited directional guidance. For instance, in case of Infopaq International A/S v. Danske Dagblades Forening (Case C-5/08), it held that copyright will only be found if there is originality flowing from the author’s own intellectual creation. This has been widely interpreted to mean that a significant form of human input is required for a work to be protected by copyright. It will be left to the individual EU member states to determine whether the output of an AI-generative model can meet this requirement. As an example of the state of the law, the German Copyright Act requires an author’s own intellectual creation for the existence of a copyrightable work. It is thought that neither a machine nor a computer program can be the author of a creative work, so it is assumed that an intellectual creation must be created by a human. Likewise in France, the current presumption is that only natural persons can be authors, and originality requires the personal touch or intellectual effort of the author, whereas implementation of automatic and constraining logic without genuine personal effort will not qualify for copyright protection. It remains to be seen, however, where there may be sufficient human input to generate a work with the assistance of an AI-generative model, such that the human could claim ownership of the work.
In the United Kingdom Copyright Protection for AI-Generative Works is Available
In general, the UK’s legal position is similar to the EU’s position. It requires a copyrighted work to be the author’s own intellectual creation, and exhibiting an author’s personal touch. As in other jurisdictions, copyright protection will exist where a human author uses a tool – like a word processing package or a pen – to produce a work. If all the creativity, however, were to take place in an AI-generative platform, it would likely be concluded by a UK court or regulatory authority that – as with other countries – the output from generative AI platform would not be protected under UK copyright law.
Significantly, however, the UK’s Copyright Designs and Patents Act of 1988 (“CDPA”) extends copyright protection to computer-generated works. Although legal scholars have challenged the idea that a non-human computer can generate a copyrightable work embodying creative skill, Section 9(3) of the CDPA clearly provides that a person who makes the arrangements necessary to create the work is the author of the resulting copyrightable work. This position was recently ratified by the UK government, as well as the UK Intellectual Property Office, which in 2022 held an open consultation specifically to address application of Section 9(3) of the CDPA to generative AI, with the conclusion that Section 9(3) should remain. While there is an open question as to who the person making necessary arrangements is in practice, it seems clear that UK law allows copyrights to exist in generative AI outputs.
In China Copyright Protection for AI-Generative Works is Available
The general rule in China is similar to the other jurisdictions examined in this blog: A work eligible for copyright protection under the Copyright Law of the People’s Republic of China (“CL”) must be an original intellectual achievement. Although the CL does not specifically address the copyrightability of AI-generated content, two recent Chinese court decisions are instructive, and may provide a conceptual framework that could apply in other countries.
In 2019, the Shenzhen Nanshan District Court found in Shenzhen Tencent v. Shanghai Yingxun that generative AI output could be eligible for copyright protection. The court confirmed that AI-generated text created using Tencent’s Dreamwriter writing AI software can constitute protectable works. The court found that the work in question was not generated purely by AI, and that intellectual activity existed in the output because Tencent’s inputs – in areas such as arrangement and selection of data input and trigger condition settings – were crucial to the output generation process. Although the Dreamwriter software did not have “personhood” the court found that multiple teams of humans within Tencent were behind the work, and Tencent therefore owned the copyright.
In a more recent case, the Beijing Internet Court ruled that an image generated by Stable Diffusion met the intellectual achievement and originality criteria in the law because the user made an intellectual contribution by in-putting prompt texts and setting parameters, with the result that the AI-generated image reflected a personalized expression of the user. In the same case, the court held that the copyright owner of the AI-generated image was the user, rather than the platform developer, because the developer did not have the intent to create the image and also did not determine the inputs. These decisions leave open the question of whether a work generated purely by AI could be copyrightable, but the general reasoning relating to arrangement and selection of inputs may provide a path toward copyright protection for at least some users of generative AI tools, at least in China.
Conclusions
Copyright ownership of AI generated works varies widely from jurisdiction to jurisdiction around the world. It appears clear that the laws in many of these jurisdictions are still being debated and settled. If intellectual property ownership and copyright protection is important to the user of a generative AI tool, it’s important to understand the terms offered by the provider of the generative AI tool, the governing law of the license agreement, the copyright laws of the jurisdiction where the user seeks to enforce its intellectual property rights, and other jurisdictional factors that may impact ownership of the generative AI-outputs.
About Finkel Law Group
Finkel Law Group P.C., with offices in San Francisco and Oakland, has almost 30 years of experience assisting our clients understand and navigate U.S. Copyright Laws, protect their original works of authorship under those laws, license their copyrighted works, and enforce those copyrights across the U.S. When you need intelligent, insightful, conscientious and cost-effective legal counsel to assist you with your copyrights matters involving generative AI, please contact us at (415) 252-9600, (510) 344-6601, or info@finkellawgroup.com to speak with one of our intellectual property attorneys.