Copyrightability of AI-generated content: a brief update and recommendation

Few are those nowadays who have not heard of the wonders of machine learning technologies. Names such as “ChatGPT”, “DeepSeek” or “Midjourney” have become known to virtually everybody and, for many, are now part of our everyday life. Writing a moving poem, drawing a realistic picture or composing a pretty melody has never been as easy as with the help of these new virtual assistants. As artificial intelligence (so-called “AI”) becomes increasingly involved in creative processes, the question of whether copyright protection may be granted to AI-generated content becomes more relevant by the day.

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1. No specific public policy despite great economic significance

As of today, there is no national legislation addressing specifically the copyright protection of AI-generated content in the EU Member States. The EU “AI Act”, which entered into force on 1 August 2024, also remained silent on the question of copyrightability of AI-generated works. Case law on this particular issue is very scarce across Europe. Yet, the arrival of easily accessible, well-functioning AI-tools already has had a considerable impact on the creative industries and is expected to continue to have a transformative effect on the economic reality of artists. As an example, according to a joint study by GEMA and SACEM (Collective Management Organisations representing authors and composers respectively in Germany and in France) dated 30 January 2024:

• the market for generative AI in the music sector alone is estimated at around 300 million USD for the year 2023, and is expected to reach 3 billion USD by 2028 – this would correspond to 28% of global music copyright collections;
• 35% of music authors and creators declare having used AI technology in their creative work – this number rises to 51% for those under the age of 35;
• 93% of music authors and creators demand that policymakers “pay more attention to the challenges related to AI and copyright”.

2. Tips to verify copyrightability of works created with the help of AI

Unsurprisingly, there is a global consensus that copyright necessitates human authorship. Public authorities around the world have excluded copyrightability of contents exclusively generated by AI without human intervention. However, according to a Policy Questionnaire of the Council of the European Union dated 20 December 2024, EU Member States agree that AI-generated outputs may be protected by copyright provided they meet the existing requirements of copyright protection. AI-assisted creations reflecting the personality of the human author and resulting of his or her free and creative choices would thus be protectible. The same approach is taken by the US Copyright Office, who nonetheless stated in its Report “Copyright and Artificial Intelligence” of January 2025 that prompts input into the AI alone do not constitute sufficient human intervention, even with a high level of detail and successive revisions of the prompts.

Based on these principles, here are some things to consider for (human) authors using artificial intelligence to ensure that their creation may enjoy copyright protection:

• Do not limit yourself to written prompts: expression of your creativity may be more visible in outputs generated by other types of input that may be copyrightable in themselves (such as drawings or sounds);
• Use AI-generated outputs as intermediate steps: re-working and editing an output yourself will increase the likeliness of having the final product qualify as a “work”;
• If you insist on letting the AI do most of the heavy lifting: try rearranging and assembling multiple AI-generated outputs into one single piece, as a well-thought combination of outputs may yet be sufficiently original;
• Document everything: from your inputs to your very last tweak on the final work, make sure that you are in a position to prove the extent and intensity of your personal intervention in the creative process.

3. Useful links

For more information, please visit the following links:

https://www.gema.de/en/news/ai-study  

https://www.consilium.europa.eu/en/documents/public-register/public-register-search/?AllLanguagesSearch=false&OnlyPublicDocuments=false&DocumentNumber=16710%2F24&DocumentLanguage=EN

https://www.copyright.gov/ai/