Spray Paint Can vs. AI - How the originality requirement under EU copyright acquis can be applied to AI-aided image production

Abstract

AI tools recently introduced actualize questions about their impact on user’s copyright from AI-generated elements in the output. This thesis first gives an empirical study presenting the technology and a case of AI-assisted image production. Then, a legal analysis shows how to apply the originality requirement to the case. When the first condition of the originality requirement is understood to concern authorial intent, the application seems unproblematic. The second condition, requiring expressions of the user’s free and creative choices in the output, has limitations that are especially relevant for AI in that there is no norm for determining a de minimis threshold for deciding if the expressions make a too small impact on the whole of the output for copyright protection. The application of the originality requirement in two theoretical models is discussed, with emphasis on how they help efficiently decide user’s copyright regarding the conditions of the originality requirement. This culminates in some remarks on how EU acquis currently needs further development to determine copyright in line with stated values.