Human Creative Contribution to AI-Based Output – One Just Can(’t) Get Enough

Abstract

The article attempts to clarify the issue of the copyrightability of AI-based output by streamlining the assessment of human creative contribution to the creation process assisted by generative AI systems. It starts with briefly outlining the state of the art of modern generative AI systems contributing to a better understanding of AI. Then the article presents a five-part test to distinguish between sufficient and insufficient human creative participation and contemplates the following authorship scenarios: sole authorship of AI designers or users; their joint authorship; and non-authorship. The article proceeds with applying the test to output produced using Midjourney, a generative AI tool. It concludes that in many cases of using AI to create output human creative participation remains sufficient for copyright protection eligibility. However, there are also developments and circumstances that drive the increase in ‘authorless’ AI-based output. Moreover, depending on the specific circumstances, using even the same AI system may lead to different test results.