How AI Prompts Are Revolutionizing Copyright Law as the New Digital Paintbrush

I believe AI prompts are the new recognized tool many artists will use to blend human creativity with machine precision to create unique original copyrightable masterpieces. In this issue I share how and why AI-generated content, such as art, written content, code and other original creations shaped by innovative prompts, can and should be afforded copyright protection.

Over the last several years, the Copyright Office has issued formal guidance on the copyrightability of works involving AI-generated content. It stated that for a work to be eligible for copyright protection, the creation of the work must include a sufficient level of human authorship. Said another way, to qualify as a work of authorship, the work must be the product of a human mind. This means that currently, purely AI-generated works without human intervention do not qualify for copyright protection.

Let's dive a bit deeper. According to the Copyright Office, to have human authorship, the following must be shown:

First, the work must originate from the author and demonstrate some degree of creativity. It cannot be a mere copy of another work or purely generated by a machine without human input.

Next, the author must exercise control over the creation process, making creative choices that shape the final work. This involves decisions about the form, content, and structure of the work.

The work must also be the result of the author's own mental conception. The author's thoughts, ideas, and decisions must be evident in the final product.

Last, the work must reflect the author's personal expression. This can include artistic choices, unique styles, and the way the author conveys their ideas.

The Copyright Office argues that the key is that the human's contribution must reflect original, creative choices that are not merely mechanical or routine. It stresses that this differentiation is important because it establishes the work as a product of human intellect rather than just an automated process.

I believe the Copyright Office is wrong and needs to expand its interpretation of human authorship.

AI prompts are the new paintbrush, pen, camera, and musical instrument, serving as essential tools for modern digital creators, builders, architects, and artists. Just as traditional painters meticulously select colors, brushstrokes, and techniques to bring their visions to life, many AI creators and artists craft detailed and innovative prompts to guide AI outputs. These prompts are not arbitrary; they demand intellectual effort, creativity, and a clear vision of the desired result.

The AI prompt, akin to a paintbrush or pen, acts as a tool that materializes the user's artistic intent. Additionally, the iterative process of refining prompts and outputs parallels the traditional artistic method of making adjustments and improvements. An artist might revise a painting multiple times, experimenting with various techniques until achieving the perfect composition. Similarly, an AI user tweaks prompts and analyzes results, ensuring the final output aligns with their creative vision. This fusion of human creativity and machine precision produces unique works that should be recognized and protected, expanding our understanding of authorship in today’s modern digital age.

Expanding upon this a bit, I believe that because of the four reasons below, the Copyright Office should start to recognize the human authorship involved in many of the AI prompted creations submitted. While I’m using a traditional artist painting with a brush as the analogy, in my examples, the same holds true for using AI prompts to write code, a book, or even to create a song, video and anything else that could have been copyrighted before AI came along.

First, just as an artist uses a brush with specific techniques to achieve a desired effect, a user crafts detailed and creative prompts to guide the AI. Some AI services change and display what you’re creating, in real-time, depending on each key or word you enter. You control every aspect of the output and the specificity and creativity in the prompts are akin to an artist’s brushstrokes, defining the style, composition, and nuances of the final work. The user’s intellectual effort in formulating these prompts reflects their creative vision, intent and output.

Second, both traditional artists and AI users engage in iterative processes. An artist might make multiple brushstrokes, evaluate, and refine their painting. Similarly, an AI user might generate multiple outputs, refine prompts, and modify results until the desired outcome is achieved. This iterative process involves and focuses not on chance, but on significant human creativity and decision-making.

Third, we all know that a traditional artist often blends different techniques or tools. Well, so can a creator or artist using AI. They can combine AI-generated elements with their modifications. For example, after generating an image, a user might enhance it with additional prompt details or integrate it into a larger work. This combination of AI and human input mirrors an artist’s use of various tools and techniques to create a cohesive piece.

Fourth, the overarching creative direction comes from the human in both cases. An artist has a vision for their painting, and similarly, a user has a conceptual vision for the AI-prompt generated work. The prompts, like brushstrokes, are tools to realize this vision. The resulting work is a manifestation of the user's creativity, shaped by their choices and modifications.

By refining this analogy, I think it’s easy to underscore the substantial role of human creativity and control in both traditional and many AI-assisted artistic and creative processes. This argument supports the idea that many works created through detailed and creative prompting that satisfy the above four criteria should be eligible for copyright protection. The key with AI creations is to demonstrate that the final work is a result of the user’s intellectual effort and creative vision, much like a traditional artwork created with a paintbrush, pen, camera and musical instrument.

Mitch Jackson, Esq.

Tech Savvy Lawyer | Private Mediator

🔥 30+ years of helping clients with law, litigation and mediation.

🛎️ Don't miss my next post. Please ring the bell at the top of my LinkedIn profile.

🗞️ If someone forwarded this issue to you, please consider subscribing to your own personal copy of my weekly “AI, Web3 and Metaverse Update” newsletter.