AI Versus Human ownership
If you’re using AI in your business, have you ever stopped to ask: Do I actually own any of this?
There is a lot of noise around AI currently. “If you’re not using it, you’re falling behind.” I agree, but in a landscape moving this fast, especially where the law is involved, it’s hard to keep up with what really matters. AI and intellectual property law is one of the most rapidly evolving and commercially significant areas of practice today. The UK has a booming creative industry, and our economy is heavily driven by television, film, small businesses and video games. It is not surprising that these industries are leveraging AI to create efficient workstreams and faster turnarounds.
Have you considered through the course of your business how this affects your intellectual property rights as a creative? To better understand ownership it is key to distinguish between what is considered an “input” and how this differs from an “output.”
Input – what goes in
When you input original material into an AI platform you will generally retain any intellectual property rights you already hold in that material, subject to the platform’s terms of service. However, you should consider whether you are granting a licence to the LLM under the platform’s terms and conditions..Ask yourself: you wouldn’t sign a contract without reading it. So why are you clicking ‘I agree’ on the platform that generates your client deliverables?
Output – what comes out
Three key questions arise when considering ownership of an AI-generated output:
1. Authorship: Did you exercise sufficient “skill, labour, and judgment” to qualify as the author under the Copyright, Designs, and Patents Act [CDPA] 1988? Simply typing a prompt may not suffice.
- “Skill, labour, and judgment” refers to the human creativity, effort and decision-making that an author invests in producing work.
- The difficulty with AI-generated works is identifying where in the process the human contribution sits, and whether it is sufficient.
2. Ownership: Even if authorship is established, ownership may be modified by:
- The AI provider’s terms of service (e.g., OpenAI assigns rights to users)
- Employment relationships CDPA. Consider what you are creating during the course of your employment. As an employee, you typically do not own this work.
- Commissioning arrangement: paying someone to produce work does not automatically make you the owner. Ensure you include an express assignment clause in your contract.
3. Infringement: Does the output reproduce a “substantial part” of another copyright work? If so, an infringement claim could arise regardless of ownership.
A practical example
Let’s take OpenAI’s terms. They “assign” to you whatever rights they have in the output which sounds generous. But they expressly state: “Output may not be unique and other users may receive similar output from our Services. Our assignment above does not extend to other users’ output or any Third-Party Output.” So, if the output draws on other users’ content or third-party IP, you may not actually own anything enforceable. Anthropic’s terms contain a similar scenario. They assign “all our right, title, and interest (if any) in Outputs.” Those two words, “if any”, make a significant difference.. This means that a client deliverable created with the assistance of an AI tool may not be owned by you in the way you expect. You might not be able to assign or licence it to your client and that could place you in breach of your own commercial agreements.
Why Should You Care?
If you’re a business using AI to generate content, websites, social media posts, designs or code you might be building on foundations you don’t actually own. That means: A competitor could potentially use the same or similar output and you would have no legal basis to stop them. If you’re selling AI-generated work to clients (as a designer, copywriter, or consultant), you may not be able to guarantee the IP rights you’re promising. Consider your liability: OpenAI’s business terms – if you are a business or organisation you provide an uncapped indemnity, holding OpenAI harmless against third-party claims arising out of your use of the services and content. Meanwhile, their liability to you is capped at the greater of your fees in the preceding 12 months or £100. [that is very low!]
Current legal landscape
Most of us will be familiar with the “Getty Images” watermark stamped across photographs online. The Getty Images v Stability AI case is a great example of how unclear things still are. Getty argued that Stability AI had used its protected images to train its model without permission.
Two interesting points came out of this case
- An “article” under copyright law can include intangible things (like digital data)
- But the model weights themselves weren’t considered copies of the original works, so they didn’t amount to infringement.
In other terms: Even if copyrighted material was used during training, the final model wasn’t automatically considered infringing. Getty’s secondary infringement claims therefore failed.
The takeaway?
We’re in completely new legal territory, and the law is still catching up. Getty had some success on other grounds, but the main point stands: this is uncharted legal territory. The courts are working through these questions for the first time, and the answers are far from final.
The Honest Position
This is not a reason to stop using AI, far from it. But it is a reason to be practical about how you use it.
Five things to do today:
- Read your AI tool’s terms of service: Understand what you’re assigning, what you’re licensing and what indemnities you’re giving.
- Document your contribution. Prompts, edits, creative decisions – keep a trail.
- Don’t publish raw AI output as business-critical content. Add your own skill and judgment.
- Put an AI use policy in place.
- Stay informed. This area of law is moving fast, what’s true today may change tomorrow.
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Disclaimer
This information is intended for general informational purposes only and does not constitute legal advice. We recommend seeking professional advice before taking any action on the information provided. If you would like to discuss your specific circumstances, please feel free to contact us on 0800 2800 421.
