AI, Copyright, and Creativity: What Artists, Creators, and Businesses Should Know Right Now
By: Tarn Faith, JD, Narwhal’s Law Clerk
Artificial intelligence has quickly become one of the most important legal and business issues facing small businesses, artists, and creators. But the law has not developed nearly as quickly as the technology. Courts, the U.S. Copyright Office, and policymakers are still working through fundamental questions about who owns AI-assisted work, how much human involvement is necessary for copyright protection, and when the use of copyrighted material to train AI systems may constitute infringement. While we at Narwhal are ourselves still learning about this quickly evolving field, we thought it was important to clarify what the current rules are involving AI and copyrights.
Can I Copyright Something I Made Using AI?
First, it should go without saying that AI itself cannot own any intellectual property. It is the human prompter behind the AI that might have a legal IP claim on content generated through the prompters' descriptions. The Copyright Office's January 2025 report says that AI outputs can be copyrightable where a human author determines sufficient expressive elements. Of course the natural question then arises, what counts as sufficient expressive elements? To answer this questions, let’s take a look at a few scenarios:
Scenario 1:
The prompter goes to ChatGPT and types: “generate a poem about Oregon for me.” ChatGPT then generates a poem about Oregon for the prompter, which the prompter does not edit, add to, or at all otherwise modify. This content is likely not copyrightable because the only expressive element determined by the human was the broad demand that the poem be “about Oregon.” This simply is not sufficient because the human elements were barely present. Now let's look at another scenario that does qualify for copyright protection.
Scenario 2:
A human wrote a poem about Oregon. They then put this poem into ChatGPT and told the software to: “check this poem for grammatical errors, fix any that you see.” ChatGPT fixes 6 or 7 instances of poor punctuation, misspelled words, and syntax errors. The prompter does not modify the poem anymore after ChatGPT. This content likely is copyrightable because the expressive human elements are plentiful. The entire poem, including the subject matter, word choice, rhyme scheme, subtext, metaphors and similes were all created by the prompter, who then used AI to modify them slightly. This is sufficient because the human elements were the core of the poem, with the AI simply editing them. Now let's take a look at more nuanced example than the above two.
Scenario 3:
The prompter goes to ChatGPT and types: “generate a poem about anything you want for me.” ChatGPT then generates a poem about Oregon for the prompter, but the prompter heavily edits the poem. They change most of the words in the poem, remove grammar they feel disrupts the poem, and add multiple lines that they feel better represents their personal connection to Oregon. This is where the incompleteness of our current AI legal doctrine becomes frustrating. It is difficult to know if the human modifications to the AI foundation counts as sufficient or not. On one hand the AI work was heavily modified by a human, and to an extent no longer resembles the initial work of the AI. On the other hand, the AI created the initial poem, and decided what its subject matter would be.
This scenario is more complicated. The human's original additions and revisions may themselves qualify for copyright protection if they contain sufficient creative expression. But that does not necessarily mean the person acquires copyright protection over the AI-generated portions that remain in the final work. In other words, copyright protection may attach to the human-created elements of a mixed human/AI work without extending to the underlying AI-generated material.
If you are using AI in work that matters to your business, keep records of your creative process. Save original drafts, sketches, source files, revisions, and other materials showing what you created before and after using AI. These records can help distinguish your human-authored contributions from AI-generated material if ownership is ever questioned.
So what can we learn from this exercise?
My advice for small business owners looking to create an AI generated piece of content they want to be copyrighted, such as a logo or advertisement, is that AI should be a modifier and not a creator. If you draw a logo and realize that you are not sure what color you want it in, putting it through an AI software likely does not disrupt the copyrightable nature of the logo. However, simply going to an AI and typing: this is my business name, generate 20 logos in various colors and styles, likely does not give you a copyrightable piece of content.
While not definitive, the following questions are some you might ask yourself before using AI in your business to help you understand if the work you create is copyrightable:
How much of the final work did a human actually create?
Do the AI platform's terms allow the way I intend to use the output?
Am I uploading anything confidential, proprietary, or belonging to someone else?
Could the output infringe another person's copyright, trademark, likeness, or other rights?
Can I document which portions of the final product I created myself vs. with others?
Can AI Companies Use My Copyrighted Work?
Copyright generally protects an artist's particular expression, but it does not give an artist exclusive ownership over a general style, aesthetic, technique, or genre. That distinction has become especially important with generative AI, which can produce images that resemble the styles associated with particular artists without necessarily reproducing a specific copyrighted work.
Andersen v. Stability AI is an ongoing court case with some interesting wrinkles. This is a case where the plaintiffs, a group of artists, sued an AI software company, the defendants, on the grounds that by scraping their work the AI had violated their copyright protections. While the case has not yet been decided, the California courts did allow the case to be brought before them, rejecting the defendant's argument that this argument had absolutely no merits. This tells us that, while nothing conclusive has been held yet, some courts are at least willing to entertain the idea that AI scraping of protected art is copyright infringement. Unfortunately, as it stands right now, that is pretty much all we can definitely say to artists wanting to protect their work from AI scraping.
It's worth noting that none of this interferes with an artist's specific copyright, and if an AI was to create art that was identical or nearly identical to someone's existing protected art, that could potentially be a copyright violation. With that in mind, feel free to contact Narwhal and schedule a free consult if you would like to know if your art is protectable and what the best ways to protect it are.
