KIRKPATRICK Intellectual Property (Patents, Trademarks and Designs)

Who Owns Copyright in AI-Assisted Creative Works?

Who Owns Copyright in AI-Assisted Creative Works?

Legal Perspectives from the EU, the Netherlands, Belgium, and Luxembourg

Introduction

As artificial intelligence (AI) tools become increasingly capable and widely used in creative industries, questions around intellectual property ownership are gaining urgency. From logos and graphic designs to written content, marketing material, and website layouts—AI can now generate complex works with minimal human input.

This raises a fundamental legal issue:

Who holds the copyright in a work that is wholly or partially created using AI tools?

Under current law in the European Union, including the Netherlands, Belgium, and Luxembourg, the answer remains clear in one respect: only human beings can be authors under copyright law.

Legal Framework: EU Copyright Law

EU copyright law—primarily the InfoSoc Directive (2001/29/EC) and the Digital Single Market Directive (2019/790)—requires that a protected work must:

“Originate from the author’s own intellectual creation.”

This principle has been consistently interpreted by the Court of Justice of the European Union (CJEU) to mean that:

A natural person must be responsible for the creative choices;

Works generated solely by machines—without significant human intervention—cannot qualify for copyright protection.

What Is (and Isn't) Protected?

1. Protected:

- Human-Guided AI Output with Creative Contribution A person uses AI tools (e.g., Midjourney, ChatGPT, Adobe Firefly) with detailed prompts and exercises control over the outcome.

- AI is used as an Assistive Tool Within a Creative Process AI is used in tools like Canva, Figma, or Photoshop for suggestion, layout support, or background generation.

The result is edited or curated to reflect the author's intent. The human creator remains in charge of structure, content, and final output.

➡ This qualifies as a copyright-protected work, with the human user as the author.

Examples:

A designer provides specific artistic direction to generate brand visuals and adjusts the final product.

A writer uses AI-generated text as a draft and rewrites sections to reflect personal style and original content.

2. Not protected: Fully AI-Generated Without Meaningful Human Input

A work is produced entirely by AI based on vague or generic prompts.

The user accepts the result without editing, selecting, or curating meaningfully.

➡ No copyright protection applies, as the result lacks human originality.

Examples:

A logo generated from a one-line prompt, used as-is.

A marketing article written entirely by AI and published without revision.

Legal Position by Country

All EU Member States must follow EU copyright principles, in Belgium, Netherlands and Luxembourg the national legislations confirm that a machine cannot be an author and that is only protected work which implied an human intellectual creation.

Best Practices for Creators, Businesses, and Legal Teams

Ensure human originality: Use AI tools as instruments—not as autonomous creators. Make intentional, creative decisions.

Keep detailed documentation: Store your prompts, drafts, edits, and selection processes as evidence of authorship.

Review tool-specific terms: Some platforms offer commercial usage rights but do not grant exclusivity or full copyright over AI-generated outputs.

Transparency: While not required by law, it's often recommended to disclose when AI was used in the creation of a work, especially if there's a significant human contribution

Use other IP tools where needed: If copyright protection is weak or uncertain, consider registering trademarks, designs, or seek contractual protections.

Conclusion

Under current EU and national law, copyright protection is reserved for works created through human intellectual effort. While AI tools may accelerate and ease the creative process, they do not replace the need for human authorship. However, there is still no specific law regarding who owns the copyright resulting from works produced by- or with- generative AI tools.

The more control, input, and originality you contribute as a human creator, the stronger your legal position will be in claiming ownership of an AI-assisted work—whether it is a logo, design, written text, layout, or marketing asset, but check the terms and conditions of the AI provider.

As laws continue to evolve, the principle remains:

Creativity deserves protection—but only when it originates from a human mind.