AI-generated content and copyright
Two questions have to be kept apart: whether any protected right arises in an AI output at all, and whether the output infringes someone else rights. The answers are independent of one another.
The two questions get mixed up constantly in practice. Whoever wants to know whether they may use an output is asking the second. Whoever wants to know whether they can stop others using it is asking the first.
Two questions, two answers
Does protection arise in the output?
- Requires a personal intellectual creation, and so a human contribution
- A prompt alone regularly does not suffice
- Selection, editing and arrangement can found protection, then for that contribution
- Without copyright a related right may still apply depending on the type of work, for instance in a photograph
- Without any protection at all you cannot stop third parties using it
Does the output infringe others?
- Arises regardless of whether protection attaches to the output
- What matters is whether protected elements are recognisably reproduced
- Trademark, personality and design rights can also be affected
- The provider terms govern your relationship with them, not third-party rights
What to settle before deployment
- Which rights the provider terms grant in inputs and outputs
- Whether an indemnity for third-party claims is promised and how far it reaches
- Whether and how outputs should be labelled
- How the human contribution is documented, where protection is to be claimed
- Which outputs are never used without review, such as logos and campaign visuals
How we support you
We review the terms of the service in use, assess the rights position for your actual deployment and draft the internal policy for it. Where no copyright arises in an output, we assess whether other rights come into consideration.
AI content in your marketing?
We settle what you may use and what you can protect.
Clarify the rights positionFrequently asked questions
Is an AI image protected by copyright?
Copyright protection presupposes a personal intellectual creation, and so a human contribution. An output resting essentially on a prompt regularly does not reach that. The more selection, editing and arrangement are shaped by people, the more protection comes into consideration, but then for that contribution and not for the raw output.
What follows if there is no protection?
Nobody can stop you using it, but you cannot stop anyone else either. For logos, campaign visuals and product designs that matters. In those cases it is worth looking at other rights, such as trademark law or protection against imitation.
Can an AI output infringe someone else rights?
Yes, and that question arises regardless of whether protection arises in the output itself. Where an output reproduces protected elements of a work or imitates a protected style recognisably, claims come into consideration. This can only be assessed against the specific output.