Can an image created by generative AI be protected by copyright?

With the emergence of generative AI, we are increasingly getting the question of whether AI-generated images by copyright can be protected. The rule is that only human creativity, as expressed in a concrete work, can give rise to copyright protection. But what about images created using AI?

Prompts and copyright protection

A prompt-an instruction to the AI tool-is usually not in itself sufficient for copyright protection. Even a series of prompts usually does not lead to protection, because human creativity is not expressed in sufficiently concrete terms.

Yet this changes when humans are more intensely involved in the creative process. The more human input in the creation of the final image, the more likely it is to be legally protected.

Case study: 'A Single Piece of American Cheese'

A clear example is the work "A Single Piece of American Cheese" by Kent Keirsey, CEO of Invoke. In a fascinating timelapse video, Keirsey shows how he creates an image created entirely using AI. Through a combination of prompts, human interventions and various AI techniques, an artistic woman's head eventually emerges, formed from stained glass-like structures, spaghetti-like hair and melted cheese.

Keirsey used several techniques to do this:

• Machine-generated portions: Repeatedly give prompts, such as "try again," until the result meets human approval.
• Human inpainting: The human gives the AI a rough sketch or idea, followed by directed instructions such as "more like this."
• Text-based inpainting: The human selects parts of the image and describes desired changes textually.
• Visual inpainting: The human "draws" directly on the image after which the AI elaborates on this suggestion.

Legal recognition by the US Copyright Office

Initially, the United States Copyright Office (USCO) the registration of the work. However, Keirsey argued that he had carefully selected, coordinated and arranged various AI-generated fragments into one new, coherent whole. In doing so, he provided the video as evidence of the creative process.

On this, the USCO decided to still grant copyright protection to "A Single Piece of American Cheese," albeit with the exception of individual elements generated entirely by AI. Registration took place on Jan. 30, 2025. The claim was specifically recognized because of "the selection, coordination and arrangement of material generated by artificial intelligence."

Importance of capturing creative process

This example underscores how crucial it is to accurately document the creation process when deploying generative AI. Only with demonstrable and substantial human creativity and documentation of it do you significantly increase the chances of legal protection for your AI-generated works.