The impact of AI on copyright

Since the advent of “Generative AI” and Large Language Models like ChatGPT, Gemini, Copilot, and Claude, many developers have fallen to the promise of vibe coding. You don’t have to be a developer to create software projects. Instead, you can simply describe the project in a prompt, and the AI system will write the code for you.

However cool that prospect might be to some, there are some pretty big implications to organizations who lean too heavily on AI coding assistants. I’d like to address the license issues of using AI to write code.

Too much AI can erode copyright

All licenses rely on copyright to assert what others can and cannot do with your product. Copyright gives you, the copyright holder, the right to define how others can copy your work. If copyright did not exist, you would not be able to place your software under any kind of license, such as the GNU GPL in the case of open source software, or some other license for proprietary software.

However, US courts increasingly find that AI generated content is not eligible for copyright protection. In one well-known case, an artist used AI to generate an image, Théâtre D’opéra Spatial, which he entered into an art contest. The artist did not disclose that his piece was generated by AI.

While the artist won the art contest, it turns out he is unable to receive copyright for the work. As highlighted in a 2023 public radio article, the artist applied for copyright protection, but was struck down by the US Copyright Office:

The image was striking enough to win part of the Colorado State Fair’s art contest last year. But the U.S. Copyright Office on Tuesday issued a final decision that it can not be copyrighted, meaning Allen can’t get legal protections to stop others from reproducing and using the image themselves.

The federal office found that Allen is not the “author” of the piece. Instead, the office wrote, “his sole contribution to the Midjourney Image was inputting the text prompt that produced it,” and then making visual modifications afterward. The office has found previously that copyright law is meant to protect human authors, not machines.

In earlier guidance, the office wrote: “When an AI technology receives solely a prompt from a human and produces complex written, visual, or musical works in response, the ‘traditional elements of authorship’ are determined and executed by the technology—not the human user.”

The Copyright Office pointed to numerous other cases in which the courts have rejected non-human authors, including one involving a book purportedly authored by “non-human spiritual beings.” (The decision also referenced a dispute about whether a monkey’s selfie could be copyrighted.”)

US Copyright Office

I also encourage you to read the US Copyright Office report on Copyright and Artificial Intelligence, (PDF) specifically part 2 about “Copyrightability.” At 52 pages, this might seem like a long document. But many pages are half-filled with ample footnotes, so the effective page count is a more manageable 25 or 30 pages.

Page 8 of the report mentions the Théâtre D’opéra Spatial art piece, and the court decision that addressed the issue of claiming copyright on AI-generated work: (the numbers refer to footnotes in the report)

In 2023, the U.S. District Court for the District of Columbia became the first court to specifically address the copyrightability of AI-generated outputs. 37 The plaintiff challenged the Office’s refusal to register an image that was described in his application as “autonomously created by a computer algorithm running on a machine.” 38 Affirming the Office’s refusal, the court stated that “copyright law protects only works of human creation,” and that “human authorship is a bedrock requirement of copyright.” 39 It found that “copyright has never stretched so far as … to protect works generated by new forms of technology operating absent any guiding human hand.” 40 Because, by his own representation, the “plaintiff played no role in using the AI to generate the work,” the court held that it did not meet the human authorship requirement. 41 The decision has been appealed. 42

The key takeaway from the US Copyright Office report is that there is no hard-and-fast rule for how much a person can use AI and still claim copyright. In other words, just because you described the end-product to an AI, doesn’t necessarily mean you can claim copyright over what the AI generated for you. For example, the report says this on pages 10–11:

Although an AI-generated output cannot be considered a joint work with respect to the user and AI system, 57 joint authorship provides a helpful analogy in assessing whether a party contributed sufficient expression to be considered an author. 58 To be a joint author, one must make a copyrightable contribution. 59 “A person who merely describes to an author what the commissioned work should do or look like is not a joint author for purposes of the Copyright Act.” 60

Finding a dividing line

These issues sometimes need to be determined on a case-by-case basis. The general guideline is the more a human made decisions in the process, such as arranging the AI-generated output, the more likely that the human may be able to claim copyright.

Here’s a parallel example: if you hire an artist to paint your portrait, and you make specific requests like “make the background look like I’m in a garden,” that doesn’t make you a “co-painter” of the piece. You simply described the end product; someone else actually did the work.

That’s the dividing line in AI-generated work, and that’s why it’s important for organizations to be mindful of how much they use AI in their work. The more you rely on AI to create products for you, such as using Claude to write code, the less likely you can claim copyright on the product.

In the extreme case of “vibe coding” where you only describe the end product, but the AI actually did the work for you, you may not be able to claim any copyright at all. And because licenses rely on copyright, you may not be able to protect your “vibe coded” project under any kind of license.

This is new territory where IT leaders need to tread carefully. This is a governance issue, and IT leaders should plan to bring this issue through their governance structures. IT leaders should also work with their general counsel to understand their organization’s view on AI in the creative pipeline.