Like many of our clients, the IP lawyers at CMS are struck by the speed at which AI is developing and by the impact that AI will have on the application of the law. In this series of short articles, we will identify several questions that AI poses in the area of intellectual property law, and we will provide pragmatic answers. Our approach is based on our national law (which is Belgian law), but the legal reasoning will apply in many other jurisdictions, given that the areas of law we will cover – copyright law, personality rights, trademark law and design law – are governed by international treaties and European directives and regulations.
The first question is straightforward: Is the output of generative AI protected by copyright law? The answer is no. The person using AI to create something will not own any copyright in the creation.
In the EU, the Municipal Court in Prague in the Czech Republic was the first to clearly state that a picture generated by the AI tool DALL-E of OpenAI is not a copyright-protected work (Decision of 11 October 2023). The user of DALL-E obtained the picture below by using the following prompt: “Create a visual representation of two parties signing a business contract in a formal setting, such as a conference room or a law firm in Prague. Show only their hands.”
The defendant had reproduced this picture and was sued in court, but the court rejected the claim of the alleged author, stating that only physical persons can create original works of authorship, not AI tools. The Prague judgment aligns with the case law of the European Court of Justice, which only grants copyright law protection to “an intellectual creation of the author, reflecting his personality and expressing his free and creative choices” (CJEU, 1 December 2011, C-145/10, Eva-Maria Painer). A person using DALL-E with a particular prompt does not meet the threshold of originality and cannot claim protection under copyright law.
The District Court in Washington DC (US) reached the same conclusion two months earlier. It ruled that the Copyright Office acted properly when denying copyright registration for a work created without any human involvement. The work in question was a picture called “A Recent Entrance to Paradise” created by an AI computer program developed by Stephen Thaler:
The court rejected the claims of Mr Thaler because “human creativity is the sine qua non at the core of copyrightability, even as that human creativity is channeled through new tools or into new media”. According to the court, photographs may constitute copyrightable creations of authors, despite issuing from a mechanical device that merely reproduces an image of what is in front of the device, because the photographic result nonetheless represents the original intellectual conceptions of the author. This is not the case for AI creations (Decision of 18 August 2023).
However, this does not mean that AI creations cannot be protected. To be eligible for copyright protection, the creator can adapt the non-protected AI creation, by adding, changing and deleting elements that reflect his or her personality and express his or her free and creative choices. At this point, a work of authorship emerges, just as with a piece of classical music – part of the public domain – that is rearranged by a modern composer, whose rearrangement will be protected by copyright.
Recommendation
If you use AI tools to make new “works” that you would like to be protected by copyright, modify them by adding new elements, deleting parts, incorporating colours or sounds, etc. By using your own creativity to enhance the AI creation, you will become the author of the final result, and your creation will be protected until 70 years after your death. Remember to keep all evidence of your creative intervention, because you may need it to enforce your rights one day.
This article was written by Tom Heremans, with the valued assistance of Microsoft’s Copilot. It is part of the series “AI and intellectual property rights”, written by the IP lawyers at CMS in Belgium.
