Copyright of AI-Generated Content: Current Legal Framework

Generating proposal text with ChatGPT, creating logo designs with AI illustration tools, and producing narration with voice synthesis AI—now that such AI utilization has become routine, the question "Who owns the copyright to these outputs?" is causing confusion in practical work environments.

Freelance web designer A encountered difficulty when, after creating banner images for a client using AI illustration generation tools, the client confirmed after delivery, "The copyright to these images belongs to our company, right?" and A couldn't provide a clear answer. Meanwhile, corporate staff member B on the ordering side learned after the fact that a logo design submitted by a contractor was AI-generated, leading to concerns like "Can't other companies generate the same thing?" and "Is trademark registration possible?"

The background to such confusion lies in the current situation where legal clarification regarding rights relationships for AI-generated content hasn't kept pace. Traditional copyright law was designed with human creative activities as a premise, and clear regulations don't exist for handling automatically generated AI outputs. Furthermore, regarding AI-generated content rights, treatment differs depending on the terms of use of AI services and generation processes, requiring individual judgment.

On the contractor side, lack of awareness such as "I thought I had copyright even for AI-generated works" and "I didn't know I had an obligation to explain to clients" causes problems, while on the client side, inadequate preparation like "If I'd known it was AI-generated, I would have negotiated the fee" and "We didn't specify rights relationships in the contract" respectively become sources of trouble.

To understand AI copyright issues, it's first necessary to grasp what principles Japanese copyright law is built upon.

Article 2, Paragraph 1, Item 1 of Japan's Copyright Act defines copyrighted works as "creative expressions of thoughts or emotions that fall within the scope of literature, academia, art, or music." The phrase "creative expressions" in this definition is a crucial requirement that affects rights relationships for AI-generated works.

According to the Agency for Cultural Affairs' view, "human creative contribution" is necessary for recognition as a copyrighted work, and copyright does not arise for outputs automatically generated by AI itself. However, when humans use AI as a tool and make creative contributions during the creation process, copyright may be recognized for those parts.

The following factors are considered as specific judgment criteria:

Cases Where Human Creative Contribution Is Recognized

• Originality in prompt (instruction text) design
• Humans applying creative processing/editing to AI-generated works
• Humans combining multiple AI-generated works through creative judgment
• Humans creating new works using AI-generated works as material

Cases Where Human Creative Contribution Is Not Recognized

• Simply having AI automatically generate with simple instructions
• Using AI-generated works as-is
• Making only mechanical corrections (fixing typos, etc.)

The same thinking applies to ChatGPT copyright. While copyright doesn't arise for text generated by ChatGPT itself, when users employ prompt engineering to obtain original outputs or creatively edit generated text, copyright may be recognized for those creative contribution parts.

However, since definitive case law hasn't yet accumulated regarding the degree and scope of "creative contribution," uncertainty remains in individual case judgments. Therefore, practical work is recommended to proceed based on the most conservative interpretation—"AI-generated works themselves have no copyright."

To manage rights risks when handling AI-generated content, response measures that contractors and clients should each implement are organized below.

Contractor (Freelance/Production Company) Response Measures

Contract Execution Response Contractors need to clearly specify the following clauses in contracts for projects where AI generation tools may be used:

"When part or all of the deliverables include AI-generated content, the client understands that copyright may not arise for such AI-generated portions. The contractor bears an obligation to disclose to the client the AI tools used and generation processes."

Regarding AI illustration copyright specifically, the following points should be clarified in contracts:

• Commercial use possibilities for AI-generated illustrations
• Risk of similar designs being generated by others
• Scope of responsibility regarding similarity with existing works

Production Process Record Management To clarify rights relationships for AI-generated content, maintain records of the following:

• Names and versions of AI tools used
• Content of input prompts
• Reasons for selecting from multiple generated candidates
• Content and scope of human processing/editing
• Existing works referenced (if any)

Existing Work Rights Infringement Checks Since AI-generated works may use existing copyrighted works as unauthorized learning data, implement the following check processes:

• Comparison with existing works through similar image searches
• Investigation of existing works with distinctive motifs or compositions
• Comparison with competitors' copyrighted works
• Consultation with legal specialists when doubts arise

Client (Corporate/Organization) Response Measures

Specification Creation When Ordering Clients should clarify the following points regarding AI-generated content use in specifications:

"AI Generation Tool Usage Permissions and Conditions"

• Designation or restrictions on usable AI tools
• Upper limits on AI-generated work percentage (such as under 50% of total)
• Minimum requirements for human creative contribution

"Rights Relationship Handling"

• No copyright claims for AI-generated portions
• However, normal rights transfer for human creative contribution portions
• Prior consultation regarding impact on trademark or design patent applications

Delivery Confirmation Process Clients should perform the following confirmations for deliverables:

• Clear distinction between AI-generated portions and human-created portions
• Confirmation of rights clauses in terms of use for AI tools used
• Reports on existing work rights infringement risks
• Setting disclaimer clauses in preparation for future rights troubles

Internal Usage Guideline Development Develop unified rules for utilizing AI-generated content within the company:

• Setting AI usage scope by department
• Rights confirmation flow for external communications
• Prior check systems for trademark and design registrations
• Response procedures when rights infringement claims occur

Common Precautions for Both Parties

Response to AI Service Terms of Use Changes Major AI services like ChatGPT and Stable Diffusion frequently update their terms of use. Changes to clauses regarding rights relationships in particular may affect existing contracts and creations, requiring regular confirmation.

Rights Risks During Overseas Expansion Treatment of copyright for AI-generated content differs by country. In the United States, there are movements to recognize copyright for some AI-generated works, and the EU plans to introduce new regulations through "AI Act" legislation. When creating content for overseas markets, it's necessary to research the legal systems of target countries in advance.

Common misconceptions about AI-generated content rights frequently seen in practical work environments and the troubles they cause are organized below.

Typical Contractor-Side Misconceptions

"Using AI tools still makes it my copyrighted work" Many creators perceive AI tools like "high-performance image editing software" and believe copyright arises for AI-generated works just like traditional creations. However, as mentioned earlier, copyright doesn't arise for outputs from simple prompt inputs.

This misconception leads to actions like "reusing AI-generated logo designs for multiple clients" and "selling AI-generated illustrations as materials," which later become sources of trouble.

"Copyright arises if prompts show creativity and ingenuity" With improvements in prompt engineering techniques, creators creating complex and detailed instruction texts are increasing, but creativity and ingenuity in prompts alone don't necessarily satisfy the "creative expression" requirement for copyright generation. What matters is human creative contribution in the final output; prompts are merely the means to that end.

"It's safe if AI service terms say 'rights belong to user'" Some AI generation services specify in their terms that "rights to generated works belong to users," but this doesn't guarantee rights generation under copyright law. This means the service provider "won't claim rights," and third-party infringement risks must be considered separately.

Typical Client-Side Misconceptions

"AI generation is sufficient because it's inexpensive" Many clients focus on the low production costs of AI-generated content while downplaying rights relationship risks. The thinking that "we can procure cheaply if there's no copyright" particularly overlooks future business risks.

For example, risks like trademark registration rejection when similar existing characters are discovered while attempting to register AI-generated character designs, or risks of competitors generating and using similar designs, aren't being considered.

"No worry about rights infringement with AI-generated works" The misconception that "things made by AI aren't copying existing works" is also frequently seen. However, the possibility that characteristics of existing works included in AI learning data will be reflected in generated works always exists, and rights infringement risk isn't zero.

"Same contract clauses as human creators are fine" Many clients apply traditional production outsourcing contracts directly to AI-utilizing projects, but clauses like "complete copyright transfer" and "exclusive usage rights setting" may not be achievable for AI-generated portions.

Common Misconceptions for Both Parties

"Legal issues will be resolved in the future" There's a tendency to downplay current risks with the optimistic view that "legal systems will be developed as AI technology advances." However, legal system changes take time, and there's no guarantee of retroactive application to existing contracts and creations. Response based on current legal situations is necessary.

"Using major services ensures safety" There's an assumption that using major services like ChatGPT or Adobe Firefly prevents rights issues, but service scale and rights risks don't necessarily correlate. It's necessary to individually confirm each service's terms of use and learning data sources.

Specific management methods for minimizing rights risks of AI-generated content and facilitating smooth practical work are shown below.

Immediately Implementable Measures

Documentation of AI Tool Usage Status Create a list organizing the following information for AI tools currently used or planned for use:

• Tool name, provider, pricing plan
• Summary of rights clauses in terms of use
• Learning data disclosure status
• Commercial use permissions and conditions
• Regulations regarding generated work rights attribution

Contract Template Revision Create templates including contract clauses corresponding to AI-generated content. The following are example clauses that can actually be used:

"AI-Generated Content Clauses" Article ○ (AI Usage Disclosure Obligation) When the contractor uses artificial intelligence generation technology (hereinafter "AI technology") in this work, they shall disclose this to the client in advance and obtain consent.

Article ○ (Special Rights Provisions) Both parties understand that copyright and other intellectual property rights may not arise for portions generated by AI technology (hereinafter "AI-generated portions"). Normal rights transfer clauses apply to portions other than AI-generated portions that involve human creation.

Article ○ (Rights Infringement Responsibility) Responsibility allocation when AI-generated portions infringe third-party intellectual property rights shall be separately negotiated. However, the contractor bears reasonable preliminary investigation obligations.

Rights Infringement Check System Construction Establish regular rights infringement risk confirmation processes:

1. Generation-time Check: Confirm similarity between AI-generated works and existing works using image search tools
2. Pre-delivery Check: Conduct comprehensive rights investigation for completed creations
3. Post-publication Check: Regularly monitor emergence of similar content

Record Management System Introduction To efficiently manage AI generation process records, construct a database containing the following information:

• Project name, client name
• AI tools used, generation date/time
• Prompt content, generation count
• Human editing content, editor name
• Rights investigation results, approver name

Medium to Long-term Response Strategies

Collaboration System with Legal Specialists Establish consultation systems with lawyers and intellectual property specialists knowledgeable about AI-generated content rights issues. Specialist consultation is particularly necessary in the following cases:

• AI utilization in high-value projects
• Creations planned for trademark or design registration
• Content creation assuming overseas expansion
• Cases with suspected rights infringement

Continuous Industry Trend Research Since AI technology and legal systems are changing rapidly, regularly collect latest trends from the following information sources:

• Agency for Cultural Affairs and Patent Office published materials
• Intellectual property rights-related case law
• Major AI service terms of use changes
• Overseas legal system trends

Client Education Implementation To prevent troubles due to client-side lack of understanding, create explanatory materials about AI-generated content rights relationships and use them in pre-contract explanations. Key points to explain are:

• Position of AI-generated works under copyright law
• Differences and risks compared to traditional creations
• Contract clause changes and their reasons
• Possibilities of future legal system changes

Emergency Response Preparation

Rights Infringement Claim Response Procedures Pre-establish response flows for when third parties point out rights infringement regarding AI-generated content:

1. Initial Response: Detailed confirmation of claim content, evidence preservation
2. Fact Investigation: Generation process record confirmation, similarity verification
3. Legal Judgment: Specialist consultation, infringement determination
4. Response Decision: Policy decision for usage suspension, modification, settlement negotiation, etc.
5. Recurrence Prevention: Check system review, tool change consideration

Insurance and Compensation System Utilization Considering insurance products covering AI-generated content rights infringement risks is also important. Confirmation with insurance companies is necessary regarding whether traditional creation liability insurance covers AI-generated works.

Going forward, both contractors and clients need to achieve safe and sustainable creative work through appropriate risk management while utilizing the innovation and convenience of AI-generated content. Rather than completely avoiding AI technology utilization due to current legal uncertainty, pursuing new creative possibilities through appropriate preparation and measures is required.