Who is the author? A fundamental question in the age of AI now has a clear answer: only a human being can claim authorship and benefit from copyright protection. 🔍
Indeed, the U.S. Supreme Court has just ruled in Thaler v. Perlmutter that a work generated by AI without significant human intervention cannot qualify for copyright protection.
This decision aligns with the principles of the French Intellectual Property Code, which protects “works of the mind” (Art. L111-1) – a concept intrinsically tied to the involvement of a natural person.
Originality, the cornerstone of our legal system, requires “the imprint of the author’s personality.” A machine, lacking consciousness and legal personality, cannot embody this essential dimension.
This principle isn’t arbitrary: it’s designed to encourage human creativity and to recognize the personal bond between an author and their work.
The Crucial Distinction: AI-Generated vs. AI-Assisted Works âš–
Purely AI-Generated Works (no significant human intervention)
Not eligible for copyright protection
Likely to fall into the public domain
Example: An image created by the simple prompt “Generate an image of Paris in spring.”
AI-Assisted Works (AI as a tool for a human creator)
Potentially protectable if the human intervention is sufficiently creative
The human must demonstrate free, creative choices that substantially shape the final work
Qualifying interventions may include: Elaborate prompt engineering, Careful selection from multiple AI outputs, Substantial post-generation edits, Original combination of elements
The Practical Challenge: Defining the Human-Intervention Threshold 🔍
The legal “grey area” lies in determining how much human involvement is enough to secure authorship. For your clients or your company, ask:
Is a single click on “Generate,” followed by unaltered use, enough? Clearly not.
Do multiple, highly specific prompts, several iterations, and significant post-generation tweaks count? Very likely yes.
How will courts weigh these factors? Jurisprudence will evolve on a case-by-case basis.
While the principle of human authorship remains firmly established, the threshold of required intervention will undoubtedly shift with future case law and industry practice. Some jurisdictions may adopt more flexible standards, while others maintain a strict approach.
Until any legislative updates arrive, your best defenses remain prudence, rigorous documentation of every step of human input, and a pragmatic, case-by-case analysis to safeguard the intangible assets under your care.
