(800) 594-4480

Keep it Legal Blog

Strategies to Protect AI-Generated Art

As an intellectual property lawyer, I’ve seen firsthand how rapidly evolving technology can reshape the legal landscape. The rise of AI-generated art has brought new challenges and questions to the forefront of copyright law. If you’re a creative professional or business owner exploring AI art tools, you may be wondering how to protect your work. This post will guide you through the current state of U.S. copyright law regarding AI-generated art and offer strategies to safeguard your creations.

Note – the law relating to AI-generated art is liable to change quickly; I will post updates as the law develops, but you should of course consult an IP attorney for up-to-date advice.

Recent Legal Developments

In August 2023, a significant ruling came from the U.S. District Court for the District of Columbia. The court upheld the U.S. Copyright Office’s decision to reject copyright protection for an AI-generated image. This case, involving computer scientist Stephen Thaler and his AI system DABUS, set a precedent that purely AI-generated works are not eligible for copyright protection under current U.S. law.

The court’s reasoning hinged on the fundamental principle that copyright law is designed to protect human authorship. As Judge Beryl A. Howell stated, “Human authorship is a bedrock requirement of copyright.”

This ruling aligns with the U.S. Copyright Office’s guidance issued in March 2023, which clarified that copyright protection extends only to works of human authorship. The office stated it would not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author.

Strategies for Protecting Your AI-Assisted Art

Given these legal constraints, how can artists and creatives protect their work when using AI tools? Here’s a step-by-step approach:

1. Start with Human-Created Original Work

Begin your creative process with a fully human-authored work. This could be:
– A sketch or drawing on paper
– A digital illustration created using non-AI art software
– A written description or concept for your artwork (this is perhaps the weakest approach, but it’s an option)

This original work, being entirely human-created, is eligible for copyright protection. Make sure to document your creative process, including dated sketches or files, to establish a clear record of your authorship.

2. Understanding Derivative Works

Before we move to the next step, it’s important to understand the concept of a “derivative work.” A derivative work is a new, original product that includes aspects of a preexisting, copyrighted work. Examples include translations, musical arrangements, or art pieces based on photographs.

Under copyright law, the owner of a copyrighted work has the exclusive right to create derivative works based on the original. This is where your initial human-created work becomes crucial.

3. Using AI to Refine Your Work

Now that you have a copyrightable original work, you can use AI tools like Midjourney or DALL-E to refine or expand upon it. When you input your original work or its description into an AI tool, you’re essentially creating a derivative work.

Here’s how this process might look:
– Create an original sketch of a landscape
– Write a detailed description of the sketch, including colors, mood, and specific elements
– Input this description into an AI art generator
– Further refine the AI output using digital editing tools

4. Documenting Your Process

Throughout this process, it’s crucial to maintain detailed records. Document:
– Your original human-created work
– The prompts or inputs you provide to the AI tool
– The raw output from the AI
– Any further edits or refinements you make to the AI output

This documentation serves two purposes:
1. It demonstrates your creative input and direction in the final work.
2. It establishes a clear link between your copyrightable original work and the AI-assisted final product.

5. Copyright Registration

While copyright protection technically begins the moment you create an original work, registering your copyright with the U.S. Copyright Office provides additional benefits. These include:
– A public record of your copyright claim
– The ability to file a copyright infringement lawsuit in federal court
– Eligibility for statutory damages and attorney’s fees in successful litigation

When registering a work that involves AI assistance, be transparent about the process. You might consider registering both your original human-created work and the final AI-assisted version as separate works. Note, however, that the AI-assisted version may not be registrable, given the U.S. Copyright Office’s guidance above.

Potential Legal Protections

While the law is still evolving in this area, here are some potential avenues for protecting your AI-assisted art:

1. Copyright in the Original Work: Your initial human-created work is clearly copyrightable. This gives you a foundation to build upon.

2. Copyright in the Derivative Work: By using your copyrighted original as a base for the AI-generated version, you may be able to claim copyright in the new elements of the derivative work that result from your creative input and direction.

3. Compilation Copyright: If your final work incorporates multiple elements – some AI-generated, some human-created – you might be able to claim a copyright in the unique arrangement and selection of these elements.

4. Transformative Use: If your use of AI tools substantially transforms the original work, adding new expression, meaning, or message, this could strengthen your claim to copyright in the final product.

Challenges and Limitations

As noted above, the legal landscape surrounding AI-generated art is still uncertain and rapidly evolving. Some challenges you might face include:

1. Proving Authorship: It may be difficult to demonstrate the extent of your creative input in an AI-assisted work.

2. AI Training Data Issues: Questions about the copyright status of data used to train AI models could potentially impact the copyright status of AI-generated outputs.

3. Varying International Laws: Copyright laws and their application to AI-generated works vary by country, which could complicate international protection and enforcement.


As AI continues to play a larger role in creative processes, the legal framework surrounding copyright protection will undoubtedly continue to evolve. For now, the key to protecting your AI-assisted art lies in starting with human-created original works, carefully documenting your creative process, and being transparent about AI’s role in your final product.

If you have questions about protecting your intellectual property, feel free to contact me.

Want to receive all the latest updates? Contact me today

Click Here

Receive updates from the Keep it Legal blog

I’m glad you enjoy the blog, and I’d love to keep you updated with all the latest legal tips and business law strategy news.

Enter your name and email below, and we’ll be in touch!

FTC’s New Rule Banning Noncompetes »