Storytelling and the art of creativity: Who holds the pen?

Storytelling is the ancient practice of passing down cultural history and traditions orally. Many of these oral stories eventually made their way into fairy tales published by the Brothers Grimm or Charles Perrault. And most of these fairy tales existed in different versions internationally and across cultures before being penned to paper. They serve as an example of the creative process - how authors draw inspiration from their surroundings, and how a story is shaped from what they collect, possibly through generations. But the author's written memorialization of the story also creates a copyright that attaches to the work and protects both the author and the work from unauthorized reproduction in the future. It is the act of fixing the story to the page that creates the legal right.

Many of the themes in these fairy tales are about mistaken identity and the mishaps of those who aren't who they purport to be. Look what happened to Little Red Riding Hood when the wolf pretended to be her grandmother. Red Riding Hood couldn't put the clues together to form the proper conclusion that what she was seeing was not actually her grandmother, though she did have doubts. In La Belle et la Bête, written by Gabrielle-Suzanne de Villeneuve (published in La Jeune Americaine et Les Contes Marins in 1740), Belle lives with the Beast and sees past his monster-like appearance. She falls in love with his true nature, which allows him to revert to his true outward self.

Both Red Riding Hood and Belle have intuitions as to who is behind the mask (or under the cape), but both react differently to those intuitions, leading to very different outcomes.

But in authorship, inventorship and ownership, we don't rely on instinct. Across the globe, we have regulations and jurisprudence that protect and incentivize innovation and creativity, and define authorship or inventorship, establishing ownership over the created work - whether it be a story, source code or a patent.

THE EUROPEAN PERSPECTIVE

Much like the enchanted woods of fairy tales, the realm of European AI inventorship is filled with intrigue and dispute. Dr. Stephen Thaler's quest to have his AI system "Dabus" recognized as an inventor has faced multi-faceted challenges in Europe, reminiscent of a hero in a fable battling against formidable adversaries. The European Patent Office, just like the patent offices in Germany and the UK, have maintained that only natural persons can be inventors, emphasizing that inventorship involves a creative act requiring human cognitive attributes. Under current European patent laws, AI systems cannot be listed as inventors on patent applications, but human developers or operators of AI systems can be recognized as inventors. While these rulings are likely to persist, it remains to be seen whether technological enhancements will awaken the Sleeping Beauty as AI grows more autonomous.

The notion of authorship in European copyright law remains a topic of debate, akin to trying to define the true ruler of an enchanted kingdom. But unlike the clear designation of authorship in many fairy tales, the term "author" is neither precisely defined in international law, such as the Berne Convention, nor in EU laws. The Berne Convention states that a work must have a human author to qualify for copyright protection. Under the German Copyright Act, the "author is the creator of the work." The French Intellectual Property Code sets out that authorship shall belong to "the natural person or persons who carry out the intellectual creation of such work," while the Irish Copyright and Related Rights Act defines the author as the person who creates a work. Similar wordings are found in a number of copyright laws in Europe.

In our modern tale, AI-generated outputs are like magical artifacts that cannot be owned unless enchanted by a human creator - with the exact meaning of the term "create" focusing on the literal and legal sense. There seems to be consensus in Europe that merely AI-generated works fall into the public domain unless protected by other means, such as trade secrets. For example, a purely machine translation of a text is not protected by copyright, as neither the developers of the translation tool nor the user has performed an intellectual creative act. And the prompt "translate the text into X" does not meet the threshold of creativity.

But isn't there a need to recognize an intellectual creation when a natural person determines the AI-supported creation process and significantly defines the quality characteristics required for the protectability of the intellectual creation? Simply put: When AI is used merely as a tool, and the human user exercises creative control, shouldn't the resulting work be copyrighted?

While legal disputes concerning authorship have been limited in the past because usually contractual arrangements have been made concerning the production and subsequent exploitation of a work, the Court of Justice of the European Union (CJEU) has offered guidance akin to a wise old wizard, emphasizing that authorship requires creative freedom and intent. Cases like Cofemel highlight that a copyright-protected work must reflect the personality and choices of its author. When a musician uses a prompt to guide an AI in composing a piece of music, and the prompt includes detailed instructions on melody, harmony, and rhythm, wouldn't that exhibit originality and creativity, reflecting the musician's personality? Reluctance stems from the fact that the musician guides, but does not exercise control over the outcome. Is the outcome - despite the key decisions made which certainly shape the output - indeed the musician's decision? What if the musician is repeatedly in the loop, and through multiple prompts revises the AI-generated output? Or is it only if the musician layers its own instrumental or vocal tracks over the AI-generated composition, that it turns frogs into princes - and the prompt's creative detail and the musician's contributions qualify for authorship? Where the line must be drawn from a practical perspective remains to be seen and will have to be assessed (by courts) on a case-by-case basis.

The last notion is that of ownership of AI-generated and AI-assisted outputs. Much like the ever-shifting alliances in fairy tales, it remains complex. Since AI-generated works cannot be copyrighted, they fall into the public domain. AI-assisted works, however, grant the human author ownership and exclusive rights, ensuring that human creativity remains at the forefront of intellectual property laws. However, copyright protection arguably only extends to the parts of the work that are created by the human author. This includes any amendments, edits, or additions made by the human creator to the AI-generated content. But what about the AI-generated elements which do not qualify for copyright protection? Is the scope of protection primarily focused on the human-created aspects of the work?

THE US PERSPECTIVE

With respect to patents, the USPTO is very clear. An inventor must be a natural person and even though AI may be used in the process of development, a human must be the named inventor. Recent caselaw has tried to change that but so far the US judiciary is holding the line. For copyrights, however, the law is not as clear and AI use raises some complex issues.

According to U.S. copyright law, only works created by humans are eligible for copyright protection. AI-generated works that lack human involvement cannot be copyrighted. The Copyright Act requires a human "author" for a valid claim, and the Supreme Court has upheld this requirement even as technology evolves. So far the law in the Unites States is consistent on this point: extending copyright to works created solely by AI would contradict the law's aim of promoting human creativity.

US COPYRIGHT OFFICE REPORT ON COPYRIGHT AND ARTIFICIAL INTELLIGENCE

On Jan. 29, 2025, the United States Copyright Office published its second installment in a series of reports on Copyright and Artificial Intelligence (the "Report"), focusing on issues of copyrightability posed by works generated by or with the assistance of AI tools. In 2022, the Office refused to register a work of visual art that the applicant claimed was created autonomously by an AI program - a decision subsequently upheld by the District Court for the District of Columbia. The following year, the Office allowed registration of a comic book that included images generated by AI, explaining that the protection only applied to the human-authored components of the work. To elucidate its official position, the Copyright Office issued March 2023 guidance on the registration of works containing AI-generated materials, instructing applicants to specify the human contributions of works containing more than a de minimis amount of AI-generated content.

Later in 2023, the Copyright Office issued a Notice of Inquiry seeking public comment on a variety of questions regarding the implications of AI technologies on copyright law, receiving over 10,000 responses. The Copyright Office published the first report addressing copyright issues pertaining to deepfakes in July 2024. The Jan. 29 report largely reiterates and builds on Copyright Office policies and recent decisions, emphasizing the indispensability of human creativity to obtaining copyright protection:

Use of Generative AI to Assist Creativity: The report confirms that using AI as a mere aid in the creative process does not preclude copyright attaching to resulting works. Examples cited in the report include the use of AI to generate ideas, structure a preliminary outline for literary works, "age" or "de-age" actors, identify chord progressions, detect errors in software code, and remove unwanted objects from a scene. The report distinguishes between using AI as a stand-in for human creativity - which would be suspect under copyright laws requiring a threshold level of original expression - and leveraging AI to assist in the creation of works.

User Prompts: The report suggests that a prompt itself can be subject to copyright protection assuming it meets the other requirements for copyright, like originality. There was some question in the report, however, as to whether the author of a prompt could claim copyright in the resulting AI output. The report concludes that prompts alone do not give the user of an AI system sufficient control over the resulting output (at least with respect to the current state of the art) to confer copyright on the author of the prompt. Prompts are instead more akin to instructions that convey unprotectable abstract ideas - similar to a would-be joint author who merely suggests ideas to a collaborator, who then does the work of converting those concepts into copyrightable expression. The report expressly contemplates that as the technology progresses to allow greater user control over the output may affect this conclusion, though advancements geared towards greater automation would strengthen the report's arguments that a prompt's author has no protectable copyright interest in the resulting AI output.

Expressive Inputs: The report differentiates between prompts that simply indicate a desired output and "expressive inputs" into a generative AI system, giving the example of a user that uploads an illustration into an AI system and asks the system to make certain alterations to the image. The report explains that where the input constitutes a copyrightable work and there are protectable elements of that work that can be recognized in the output, the author can claim copyright in the output at least as concerns those recognizable features.

Modifying AI Content: The report further explains that an author may use an AI-created output as an initial or intermediate step, modifying or arranging the output into a final creative work that itself is the product of human creativity. The report provides the example of the combination of human-authored text with AI-generated images in a comic book, which is protectible as a compilation work. The report also notes that some generative AI tools even offer features that allow users to manipulate, alter, or arrange works generated by the tool into a distinct final product.

Fair Use: Another consideration unique to U.S. copyright law is fair use, which provides a defense to copyright infringement for some activities. Fair use may shield a defendant from liability, even if a protected work is used without the permission of the copyright holder, if certain factors suggest that the use is fair. In determining whether fair use applies, courts weigh the four factors codified at Section 107 of the Copyright Act (17 U.S.C. § 107), namely:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2. the nature of the copyrighted work;

3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

4. the effect of the use upon the potential market for or value of the copyrighted work.

Many developers who have been accused of infringing copyright through the training and operation of their AI models have invoked the doctrine of fair use in their defense. Recently, fair use was found not to excuse an AI developer in a summary judgment decision, with the Delaware district court finding specifically that the purpose of the developer's use was not sufficiently transformative (under the second fair use factor). Because the consideration of fair use is typically a fact-intensive inquiry, it is unlikely that fair use will apply categorically to the development or use of AI. The availability of this defense will need to be assessed on a case-by-case basis, and some uncertainty is likely to persist for the immediate future as cases make their way through the courts and the commercial practices crystallize.

In the magical world of AI and copyright in Europe and the U.S., human creativity remains the key to unlocking protection and ownership. Current laws in both jurisdictions have upheld the principle that only natural persons can be authors and inventors, ensuring that the enchanted realm of intellectual property remains firmly rooted in human ingenuity. But other jurisdictions are challenging that notion and moving the needle closer to AI-creation.

Is there a happily ever after in these woods? Keeping your eye on the changing landscape is the challenge and also the magic behind creation in today's AI age.