Who Owns the Copyright of AI-Generated Designs? (A Comparative Analysis of U.S., European, and Korean Approaches)

 

Still confused about copyright for AI-generated designs? Me too. Here’s a deep dive into the subtle differences in the legal approaches of the U.S., Europe, and Korea, based on the latest case law and legislation, along with a practical guide for creators.

AI Copyright: A Deep Analysis of Case Law and Legislation! This article breaks down the complex copyright issues surrounding designs created with generative AI like Midjourney and ChatGPT. Learn how to protect your creative work with our checklist and review of the latest legal challenges in different countries.

 

Hey there! In an era where we can whip up stunning designs with AI, a critical question has captured everyone’s attention: “Who actually owns the incredible designs made by AI?”

While the legal frameworks for AI-assisted designs in Europe, the U.S., and Korea are all fundamentally based on the ‘human author’ principle, they each show subtle differences in focus due to their unique legal traditions and policy approaches. Today, we’ll take a closer look at these key distinctions through the lens of the latest case law and legislation.

 

🌍 Key Differences in AI Copyright Law Across the Globe

🇪🇺 European Union: Focus on the Designer’s Creative Choices

The core question in the European Union is this: “Does the design reflect the designer’s own personality and creative choices, rather than just its aesthetic effect or novelty compared to prior works?” And, “Was there room for ‘free and creative choices’ in the expression of the work, ensuring it wasn’t solely dictated by its technical function?” In other words, the emphasis is placed more on the creative process than on the final outcome.

This standard, known as the ‘Author’s Own Intellectual Creation’ (AOIC), has been established through various court rulings.

• The Ganni Shoe Case (2024): This case showed that even if a designer is inspired by existing designs, they can still meet the AOIC standard by making creative choices that reflect their own personality.
• The AI Act (2024): This law requires AI providers to disclose summaries of their training data, making it easier to establish a causal link in copyright infringement disputes.

A New Proposal to Watch: The ‘Recognizability Test’
Recently, Advocate General Szpunar of the Court of Justice of the European Union (CJEU) proposed a new ‘Recognizability Test,’ suggesting that infringement occurs if the creative elements of the original work are ‘recognizable’ in the copy. However, this proposal has faced criticism for potentially stifling innovation in industries like fashion and unfairly increasing legal liability for designers. Its future is one to watch.

🇺🇸 United States: A Strict Scrutiny of ‘Sufficient Human Intervention’

The central question in U.S. law is: “Does the expressed design show a sufficient degree of intervention or modification by a human author to be recognized?” The U.S. applies the ‘human author’ principle very strictly, making it clear that works generated solely by AI cannot be copyrighted.

• The Stephen Thaler Ruling (2023): The court denied copyright for a work created solely by AI, reaffirming the ‘human author’ requirement.
• ‘Transformative Use’: This legal concept provides a path to copyright protection if a human’s modifications to an AI-generated work are substantial enough to create a new expression, meaning, or message.
• The Kristina Kashtanova Case (2022): While the graphic novel as a whole—with its creative ‘selection and arrangement’ by a human—was granted copyright, the individual AI-generated images were not protected, highlighting the importance of ‘sufficient intervention.’

🇰🇷 South Korea: Based on ‘Additional Work’ and ‘Creative Arrangement’

In Korean law, the key questions are: “Did a human perform ‘additional work’ such as modification or enhancement on the AI output?” or “Is there creativity in the way the AI outputs were selected and arranged?” The ‘Generative AI Copyright Guide’ explains that while AI outputs themselves are not protected, copyright can be recognized for the parts that involved human ‘additional work.’ Furthermore, if there is creativity in the selection and arrangement of AI outputs, the work may be recognized as a copyrightable ‘compilation.’

While the Ministry of Culture, Sports and Tourism and the Korea Copyright Commission have been leading the charge on these issues, it remains to be seen which government body will take the lead following the establishment of the new Ministry of Intellectual Property in 2025.

 

📊 A Side-by-Side Comparison of Legal Approaches

Category	European Union (EU)	United States (US)	United Kingdom (UK)	South Korea
Copyright Requirements	- AOIC (Author’s Own Intellectual Creation) - The author’s unique personality and creative choices - Freedom of choice not dictated by technical function	- Strict human authorship principle - No protection for purely AI-generated works - AI-assisted works protectable with sufficient human input	- Gradual adoption of AOIC standard - Emphasis on the designer’s personality and free, creative choices	- Expression of human thoughts or feelings - No protection for AI outputs themselves - Copyright recognized only for the ‘additional work’ by a human
Infringement Criteria	- Restricted act, causal link, and substantial similarity - Replication via TDM is considered copying - Controversial ‘Recognizability Test’ proposed by AG Szpunar	- Transformative Use - Replication via TDM is copying, but fair use exceptions apply - Adds new expression, meaning, message, or utility	- Restricted act, causal link, and substantial similarity - Replication via TDM is considered copying - Replicating ‘style’ alone is not infringement	- Restricted act, causal link, and substantial similarity - Replication via TDM is considered copying - Replicating ‘style’ alone is not infringement
Policy & Regulation	- AI Act: Mandates disclosure of training data summaries - Reports and policy papers from the European Parliament	- Executive orders and agreements on safety measures like watermarking - Leading international discussions through WIPO	- No specific legislation yet on AI and IP - Reaffirmation of the AOIC standard’s validity	- AI-Copyright Working Group launched in 2023, published guidelines - Recommends documenting process and data sources - Future changes expected with new Ministry of Intellectual Property in 2025

 

🎯 A Practical Checklist for Creators Using AI

✅ How to Increase the Likelihood of Copyright Protection

1. Lead with a Human-Driven Plan: Create a detailed brief with your concept, style, and color palette. Experiment with multiple prompts and curate the results. (This helps prove ‘creative choices’ in the EU and ‘creative arrangement’ in Korea).
2. Make Significant Edits: Use tools like Photoshop or Illustrator to fine-tune AI outputs. Add your own text and graphic elements to make the work truly yours. (This helps demonstrate ‘sufficient intervention’ in the U.S. and ‘additional work’ in Korea).
3. Document Your Process Thoroughly: Keep a record of your prompt iterations, editing steps, and the reasoning behind your final decisions. This documentation can be crucial evidence of your creative contribution. (Important in all jurisdictions).

❌ When Copyright Protection is Unlikely

• Using the direct output from a simple prompt with no changes.
• Simply copying and pasting various AI-generated results together without creative arrangement.
• Having no records or proof of your creative process.

 

🚀 The Future for AI and Designers

Looking ahead, we can expect copyright guidelines for AI to become more specific and for detection technologies like watermarking to improve. We’ll also likely see more international cooperation to harmonize these standards.

💡 Practical Tips for Designers

1. Meticulously Document Your Creative Process: Save screenshots, screen recordings, and notes on your prompt development to create a paper trail proving your ‘human contribution.’
2. Use AI as a Tool, Not a Replacement: Leverage AI for brainstorming or creating initial drafts, but always infuse the final product with your own creativity.
3. Be Transparent: Be open with clients and the public about how you use AI tools to build trust and manage expectations.
4. Stay Informed: Keep an eye on legal changes, court rulings, and industry guidelines in your country to minimize your legal risks.

Key Takeaways on AI Design Copyright

Core Principle: All legal frameworks require ‘human creative intervention.’

Key Differences: The U.S. tends to focus on whether the result has been “sufficiently modified,” Europe emphasizes the “creative choices” made in the process, while Korea places weight on the “additional work” applied to the outcome.

Best Practice:

When using AI, document your entire process from planning to final edits!

Future Tech: AI watermarking is emerging as a key technology for content transparency.

Use these tips to create smarter with AI!

🎬 Final Thoughts: Becoming a Wise Creator in the AI Era

AI has become a powerful partner in our creative endeavors. But it’s crucial to remember that technology is just a tool—the true author is still human.

The common thread across all countries is the emphasis on ‘human creative intervention.’ Infuse your unique ideas and sensibilities into AI-generated outputs. That’s what transforms a machine’s product into a genuinely creative work that can be protected by copyright.

AI technology will continue to evolve, and the laws governing it will become more refined. But one thing won’t change: a creator’s imagination and expression are their most valuable assets. Remember, AI isn’t here to replace your creativity—it’s here to amplify it! ✨

 

Frequently Asked Questions

Q: If I edit an AI image in the U.S., is it automatically copyrighted?

A: Not necessarily. U.S. courts look for a significant level of creative modification that adds new expression or meaning—enough to qualify as ‘transformative use.’ Simple changes like adjusting colors or cropping might not be enough.

Q: What does the ‘AOIC’ standard in Europe really mean?

A: It stands for ‘Author’s Own Intellectual Creation’ and focuses on whether the author was able to make ‘free and creative choices.’ This means the final work can’t be something automatically determined by technical constraints; it must reflect the author’s personal touch and choices to be copyrightable.

Q: How can I get an AI output recognized as a ‘compilation’ in South Korea?

A: You need to do more than just collect AI-generated outputs. There must be creativity in the ‘selection, arrangement, or composition’ of the materials. For example, if you curate specific AI images to tell a unique story and arrange them in a sequence that conveys a new meaning or feeling, you have a stronger case for a copyrightable compilation.

I hope this article was helpful for all you creators navigating the age of AI. If you have any questions, feel free to ask in the comments! 😊

※ Legal Notice ※
The information provided in this blog post is for general informational purposes only and is not a substitute for professional legal advice. Please consult a qualified attorney for advice on your specific legal issues.

From Creation to Compliance: An A-to-Z Guide to Copyright Issues in AI-Assisted Fashion Design

 

AI-Designed Clothes: So, Who's the Real Creator?

As generative AI continues to transform the fashion industry, complex copyright questions—particularly around the notion of authorship—are rapidly emerging. In this creative process, prompts play a pivotal role in shaping the human contribution, whether in visual design, music, audiovisual works, or even technical ideas and inventions. This shared reliance on human creative input suggests that a common legal framework may apply across these domains. In what follows, we explore the key legal boundaries and practical considerations that every designer and creator should understand.

Hey there! Have you seen the latest from New York Fashion Week? Brands like Collina Strada are making waves with unique prints and silhouettes created using generative AI. It’s official—AI is no longer just a novelty; it’s becoming a core part of the fashion industry. Students at FIT are using it to analyze trends, and one Hong Kong fashion show even produced over 80 AI-assisted garments.

AI is showing incredible potential in the early stages of brainstorming and concept development. But behind this dazzling technology lie some complex and sensitive legal questions. ‘Who actually owns the copyright to an AI-assisted design?’ and ‘What’s the risk of infringing on the countless existing designs the AI learned from?’ These are fundamental issues we’ll face across all creative fields. Today, we’re going to take a deep dive into this challenging but crucial topic, focusing on legal discussions in the EU and the UK. 😊

 

AI Meets Fashion Design: The Reality and Its Limits

The traditional fashion design process follows a long sequence: trend research, ideation, sketching, and prototyping. Generative AI has become a true ‘game-changer,’ especially in the initial brainstorming and concept development phases. It allows designers to dramatically save time and effort and find new inspiration when facing a creative block.

However, AI isn't a magic bullet. Studies have shown that while AI-generated sketches have high visual quality, they have significant limitations in originality and the ability to reflect a designer's detailed intent.

💡 An Interesting Paradox!
In one study, the ‘designer input and customization’ aspect of AI performance received the lowest scores. Yet, that’s precisely what designers value the most! This clearly shows that AI is unlikely to ever fully replace a designer's unique artistic sensibility.

 

The Core of Copyright: Was There a ‘Human Creative Choice’?

Let’s get to the most important question: who owns the copyright to an AI-assisted design? The fundamental principle of current law is ‘human-centric.’ This means works created solely by AI cannot receive copyright protection.

The issue arises when a human designer uses AI as a ‘tool.’ In the European Union (EU) and the UK, the standard of ‘Author’s Own Intellectual Creation (AOIC)’ is applied. The key here isn’t the aesthetic quality of the final product, but whether the designer made ‘free and creative choices’ that reflect their personality during the creation process.

A 3-Step Evaluation Process for Copyright

1. Prompt Curation: The prompt a designer inputs into the AI is itself a result of creative choices. A detailed prompt like, “a red, midi-length, sleeveless A-line dress with ruffle details on the shoulders,” reflects the designer's original thought process.
2. Output Selection and Modification: The designer’s ‘personal touch’ is added when they ‘select’ a specific design from numerous AI-generated outputs and ‘modify’ it to fit their vision.
3. Final Completion: The designer’s personality and creativity are fully expressed when they add final details to the selected AI output and bring it to life as a physical garment.

Ultimately, if a human designer's creative intervention can be sufficiently proven throughout these stages, there's a possibility for the AI-assisted design to be protected by copyright.

 

The Complex Dilemma of Third-Party Infringement

While securing copyright for your own design is crucial, the risk of unknowingly infringing on someone else’s copyright is an even bigger concern. Generative AI learns through a process called Text-and-Data Mining (TDM), which scrapes vast amounts of data from the internet. This training data can include copyrighted content, and the process itself can be considered an act of ‘reproduction.’

Copyright infringement is typically determined by three factors: the act of reproduction, a causal link, and substantial similarity. The key is whether “the reproduction of a ‘substantial part’ that constitutes the ‘author's own intellectual creation’” of the original work has occurred.

⚠️ Beware! AI’s ‘Overfitting’ and ‘Memorization’
When an AI model is excessively trained on certain data (overfitting), it may simply regurgitate something nearly identical to its training data instead of creating something new. For instance, there was a case where DALL-E produced strikingly similar images of a red dress—down to the length, neckline, and slit location—when given the same prompt. This is a serious red flag that could lead to unintentional copyright infringement.

To combat this risk, AI companies are implementing ‘AI output filtering technology’. Furthermore, with the EU’s new AI Act, which will require providers to disclose summaries of their training data, it will become easier to assess potential copyright infringement in the future.

 

Legal Defense Strategy: Claiming ‘Transformative Work’

Fortunately, there are ways to navigate these challenges. Even if an AI's initial output is similar to a copyrighted work, a designer can “create a new, non-infringing ‘derivative’ or ‘transformative’ work through sufficient modifications” that adds new meaning or message.

[Case Study] Spain’s ‘Vegap v Mango’ Case

In this case, a court ruled that transforming a copyrighted painting into a digital fashion item was not infringement. It determined the new piece was “‘transformative’ and non-infringing because it provided a new expression, meaning, message, or expanded utility.”

This is an important precedent, showing that designs based on AI-generated content can be considered independent works if they are sufficiently differentiated through the designer's creative intervention.

Therefore, designers using AI should be sure to follow these practical steps:

📌 Legal Safeguards for Designers in the AI Era

1. Systematically Document Your Creative Process: It’s crucial that “the designer's personality and creative freedom are present and documented.” This record of your prompts and modifications is your strongest evidence in a legal dispute.
2. Use Safe Tools: Remember that copyright exceptions may apply when using AI tools for “non-commercial or private research purposes,” and choose AI tools with clear licensing.
3. Maximize Your Creative Contribution: Use AI outputs as a ‘first draft’ and focus on transforming them into something truly your own, “differentiated enough that the ‘substantial part’ of the original work is no longer recognizable in the new piece.”

💡

AI Fashion Copyright: Key Takeaways

The Author: Only a ‘human’ can be an author. AI is just a tool.

Protection Standard: The key test is whether it’s a human’s ‘Own Intellectual Creation (AOIC)’.

Core Strategy:

‘Transform’ the AI output and ‘Document’ your entire creative process!

Future Value: True value comes from the human's unique perspective, experience, and sensibility in using AI.

Create smarter by understanding the boundaries of copyright in the AI era!

Frequently Asked Questions

Q: Is it copyright infringement to ask an AI to design in the style of a specific designer?

A: No. As a general rule, “the mere reproduction of a ‘style’ does not constitute copyright infringement.” However, if you ask it to replicate the unique ‘expressive elements’ of a specific design (e.g., “a small design element with originality”) and the output does so, it could be considered infringement.

Q: Can I claim copyright if I just slightly modify an AI-generated design?

A: The definition of ‘slightly’ is key here. A simple color change or minor detail adjustment may not be enough. To claim your copyright, there needs to be a ‘transformative use’ that is evaluated by the “‘sufficiency’ of the creative choices,” making it substantially different from the original.

Q: What is the controversial ‘Recognizability’ test?

A: It’s a strict new test proposed by an Advocate General at the Court of Justice of the EU. It suggests that if the creative elements of the original work are “‘recognizable’ in the final product, it constitutes infringement.” It has been criticized in the fashion industry for potentially “stifling innovation and creativity,” and has not yet been formally adopted.

Q: How can I know if an AI’s training data includes copyrighted works?

A: While this used to be difficult, regulations like the EU’s AI Act are changing things. The Act will require AI providers to release a ‘sufficiently detailed summary’ of the content used for training. This will bring much-needed transparency and make it easier for users to assess risks.

Conclusion: The Future of Creativity and the Human Role

The copyright debate around AI-assisted fashion design reminds us of a crucial truth: no matter how advanced technology gets, the core of creation remains a uniquely human domain. AI is a powerful tool, but how that tool is used and in which direction it’s guided ultimately depends on the creative choices of a human designer.

In the new paradigm of human-AI collaboration, true value will come from human emotion, experience, and a unique perspective on the world. Amid the infinite possibilities that AI offers, it is still the human touch that elevates an output into a meaningful creation. If you have any more questions, feel free to leave a comment below!

※ Notice ※
This article is primarily based on the paper titled “Generative AI in fashion design creation: a copyright analysis of AI-assisted designs” (Lapatoura et al.), published in the Journal of Intellectual Property Law & Practice.
And this blog post is for general informational purposes only and cannot substitute for legal advice on specific matters. Please be sure to consult with a professional regarding individual legal issues.