Copyright protection of AI generated work – legal aspects
Publication date: June 18, 2025
Until recently, under US law, images generated entirely by artificial intelligence could not be protected by copyright. The US Copyright Office (USCO) maintains that copyright protection is only available to works in which the process involves significant human input. In late January 2025, the USCO made a revolutionary decision in which it was recognized that Kent Keirsey’s work titled “A Single Piece of American Cheese” including the selection, arrangement, and modification of the image by a human, constituted sufficient creative contribution to be subject to copyright protection.
Definition of a work
According to the Polish Copyright and Related Rights Act, a work is “any manifestation of creative activity of an individual nature, established in any form, regardless of its value, purpose or manner of expression.” This is an imprecise and broad definition.
The definition of a work is based on several key elements:
- creative activity – the work must contain something new, not be merely a mechanical reproduction of existing content, the work can only be the result of creative activity (premises of creativity);
- individual character – the work should reflect the personality of the creator, his or her own artistic and intellectual decisions (premises of individuality);
- establishment – the work must be fixed (even temporarily) in a form that allows its perception (premise of establishment).
The concept of creativity consists of two elements: novelty and subjectivity. Novelty means that the created work was not previously known in the same form and there is an objectively tangible result of independent creativity, while subjectivity assumes that the creativity expressed in the work should result from the author’s intellectual commitment, and not be the result of routine work, the end product of which is known in advance.
International position
In the European Union, the prevailing view at the moment is that AI-generated content does not constitute works under copyright law, because it lacks an element of human creation. As mentioned above, in the United States of America it is still unanimously believed that artificial intelligence cannot be the author of a work, but the selection and arrangement of AI-generated elements by a human may be subject to protection as an expression of individual creativity. The same is true in China, where in some cases detailed prompts and human supervision have been considered sufficient authorial input. The Beijing Internet Court was one of the first to recognize the commands given to artificial intelligence in the process of creating an image as sufficient individual input reflecting its expression.
To date, the US Copyright Office has rejected applications to register works for several common reasons, including:
- too low level of human creativity;
- only an idea which is not protected in itself;
- creative distance between the prompt (command issued to the AI) and the final result – an unpredictable result for the creator.
Copyright and Artificial Intelligence. Copyrightability Report.
There is no doubt that the mere activity and result of the activity of a machine/AI is not subject to copyright protection. The problem arises when a human and their creativity are involved in the creative process. AI highlights doctrinal problems with defining what is and what is not a work. USCO emphasizes the necessity of human authorship as a necessary element for granting copyright protection. This principle is based on the copyright clause in the Constitution and the interpretation of the Copyright Act.
The Supreme Court defines a copyrightable author as someone who translates an idea into a fixed, tangible form that is subject to copyright protection. In 2023, the District Court for the District of Columbia, upholding the USCO’s denial of a right to register a work “autonomously created by a computer algorithm operating on a machine,” ruled that human authorship is a fundamental requirement of copyright law and that products generated by new forms of technology cannot be protected if they operate without a guiding human hand.
With respect to the status of AI-generated works, the report refers to rulings on joint authorship, and while such a work cannot be considered a joint creation of a user and an AI system, these considerations provide useful analogies for determining whether a person’s creative contribution was sufficient. In Sullivan v. Flora, Inc., 936 F.3d 562, the Court found that “a person who merely describes to an author what a work should look like or contain is not a joint author under the Copyright Act,” confirming the axiom that the mere act of an idea or concept is not protected. The mere fact that AI is used as a creative tool does not negate copyright protection, but a work can only be covered by copyright if it contains sufficient elements of human expression.
Case study
Kent Keirsey is the CEO of Invoke, a platform that uses AI to automate creative processes and support the creativity of creators who want to explore the artistic possibilities of AI. In addition to the standard offerings similar to other platforms of this type, Invoke presents its users with the possibility of professional image editing and creation, which Kent Keirsey used to convince the USCO to amend the regulations regarding works generated using AI tools.
In August 2024, Invoke filed a motion to the Copyright Office to grant protection to the Piece of American Cheese, but the USCO, in accordance with the case law that was in force until recently, refused, citing an insufficient human factor during creation. Kent Keirsey filed a motion for reconsideration, presenting detailed documentation of the creative process.
“A Single Piece of American Cheese” will be created.
Figure 1. Initially generated image by AI
A time-lapse video was presented to USCO showing the entire process of creating the image by Kent. As he himself emphasizes, it was not based only on generating the image based on a simple command, but he as an individual had a real impact on its final appearance. Keirsey actively participated in the creation of the work, repeatedly correcting and issuing commands in order to adapt the image to his artistic vision. The president of Invoke indicated to the artificial intelligence specific fragments requiring corrections and precisely described how they should look, consciously influenced the operation of the AI, edited even small details such as eyelashes or the bone structure of the woman presented in the graphic. This process resembles traditional collage or montage techniques.
Figure 2 A Single Piece of American Cheese, final version
Justification for USCO decision change.
The USCO, after reviewing the material provided by Invoke and its legal team, decided on January 30, 2025 to grant copyright protection to Keirsey’s work , justifying its decision by arguing that there was sufficient original human creativity in the selection, arrangement, and coordination of the AI-generated material to be considered copyrightable and therefore eligible for registration.
It seems that the key element that influenced the change in USCO’s decision was the appropriate justification and documentation of the entire creative process, with a strong emphasis on the role played by humans and their will, to which they only subordinate the tools offered by artificial intelligence . If the author of the initial concept is able to convince the Office that AI was only a tool, like a brush or paint, with which he expressed his artistic vision, the work, despite being generated by artificial intelligence, will be subject to protection under copyright law.
Importantly, as indicated in Invoke – First Copyright Image AI-Generated Material, the USCO granted protection not to the image itself created by the AI, but to the manner of selection and organization by the human as creator using the AI as a tool. It is not the raw results of the AI that are protected, but the human activity on these AI-provided materials.
The perspective of Polish law.
In Polish copyright law, protection is currently granted only to works created by humans. There are no rulings or recognized views of the doctrine that would make other demands. AI is a dynamically developing branch, to which the applicable legal regulations must adapt and create appropriate mechanisms to properly protect both users and creators of systems. Currently, copyright protection of works created using artificial intelligence is based on existing solutions of copyright, civil law, or unfair competition law and their interpretations.
The Polish definition of a work requires creative human activity and the individual character of the work. In this respect, one can find numerous similarities between Polish and American solutions, the most important of which are:
- treating AI as a tool for creating a work – if a human takes an active part in the creative process (arranges, selects, chooses elements, makes corrections) and the work meets the requirements of a work, it will be entitled to protection under Article 1 of the Act on Copyright and Related Rights;
- no protection for AI itself – if the work was created entirely by artificial intelligence, it does not meet the definition of a work under both Polish and American law and is therefore not entitled to copyright protection.
Poland and the USA have a similar approach when it comes to the necessity of a human creative input into the creative process of a work, the precedent-setting decision of the USCO regarding the registration of “A Single Piece of American Cheese” may soon have its equivalents in Polish judicature, but so far there are no such rulings.
The USCO decision regarding A Single Piece of American Cheese is an innovation in the copyright and AI sector, creating a basis for developing new solutions and setting boundaries between a work generated entirely by AI and a work created by a human using AI. It should be emphasized, however, that the issuance of such a decision does not mean a complete change in the approach in American law to the use of AI to create art, it only shows that copyright protection may be available in the case of proven key human influence on the final result.
