Research on Originality of AI-Generated Works

Qizhen Yang

Law School, Shanxi University, Taiyuan, Shanxi, China

Keywords: Artificial Intelligence Works, Intellectual Property, Originality, Instrumentalism, Formal Subjectivity.

Abstract: The emergence of AI-generated works has challenged the originality standards of works in the intellectual

property system. Through the interpretation of instrumentalism or formal subjectivity, AI works have the

possibility of originality. The originality of AI works includes two core elements: "independence" and "crea-

tivity". It is substantively examined in terms of quantity and quality in three dimensions: the author's person-

ality independence, the creativity of intellectual labor, and the legitimacy of the materials provided by AI.

Works that meet the above standards are original and should be protected by copyright.

1 INTRODUCTION

Artificial intelligence simulates human intelligence

through machine learning and generates original con-

tent. A large number of artificial intelligence products

have emerged, such as Chat GPT launched by Open

AI in the United States and Wenyan Yixin launched

by Baidu in China. With the help of these artificial

intelligence tools, users can create text, pictures, and

video works by entering prompt words. The human-

computer interactive creation model has greatly re-

duced the difficulty of creation, and the number of

generated works has increased dramatically, which

has also brought about a large number of copyright

disputes. On November 27, 2023, the Beijing Internet

Court of China publicly heard a copyright dispute

case involving artificial intelligence-generated pic-

tures, and officially confirmed for the first time in the

world that the creation results of generative artificial

intelligence can be protected by copyright law. This

landmark judgment has once again sparked academic

discussions on whether artificial intelligence-gener-

ated works should enjoy copyright protection.

In the laws of various countries, the objects pro-

tected by copyright generally need to meet four re-

quirements: (1) belonging to the fields of literature,

art, and science; (2) being original; (3) having a cer-

tain form of expression; and (4) being intellectual

achievements. There is no obvious difference be-

tween artificial intelligence works and human works

in form. In judicial practice, in copyright cases in-

volving artificial intelligence, the objects of the plain-

tiff's copyright claims generally naturally meet ele-

ments (1) and (3), which does not require much

attention and discussion. In elements (2) and (4), if

originality is established, it will play a decisive role

in the recognition of intellectual achievements.

Therefore, the core of the copyrightability of artificial

intelligence works is concentrated on the originality

element of the works. In the intellectual property

practices of various countries, the general situation is

that applicants hope to obtain copyright protection by

proving that the works have "originality", while the

review authorities refuse to grant copyright to artifi-

cial intelligence-generated works on the basis that the

works do not have "originality". "Originality" has be-

come the spear and shield in the dispute over the

granting of copyright to artificial intelligence-gener-

ated works.

This article first discusses the legal provisions and

law enforcement practices of major countries and re-

gions on the recognition of "originality" of artificial

intelligence-generated works, reflects on the essence

of the "originality" standard, and then puts forward

personal views on the originality standard of genera-

tive artificial intelligence-generated works.

Artificial intelligence creation has broad applica-

tion prospects. Studying the originality of the works

it generates and exploring whether human authors can

obtain copyright protection not only concerns the au-

thors' legitimate rights and interests, but will also pro-

foundly affect the future development direction and

potential release of the artificial intelligence industry.

Yang, Q.

Research on Originality of AI-generated Works.

DOI: 10.5220/0013964800004912

Paper published under CC license (CC BY-NC-ND 4.0)

In Proceedings of the 1st International Conference on Innovative Education and Social Development (IESD 2025), pages 60-65

ISBN: 978-989-758-779-5

2 LEGAL PRACTICE ON

ORIGINALITY OF

AI-GENERATED PRODUCTS IN

MAJOR COUNTRIES AND

REGIONS

At present, major countries and regions are discussing

the originality of AI-generated products, and three

main views have been formed: the view of non-recog-

nition represented by the United States, the view of

recognition represented by the United Kingdom, and

the view of substantive review represented by China.

2.1 Not Recognizing the Originality of

AI Works

In the practice of intellectual property rights in the

United States, it is not recognized that AI works can

be granted copyright. In March 2023, the United

States issued the "Guidelines for Copyright Registra-

tion of AI-Generated Materials", which stipulates that

only works created by human intellectual labor are

protected by copyright (US Copyright Office. 2023).

In law enforcement practice, the U.S. Copyright Of-

fice's originality review of works requires that the au-

thor should have control over all key processes in the

generation of the work. In the Zarya of the Dawn case,

Kristina Kashtanova created a cartoon called Zarya of

the Dawn (Zhe et al., 2023). But when she filed an

application for registration with the Copyright Office,

she did not mention the process of using the AI paint-

ing tool Midjourney to create the pictures. After she

disclosed that the picture was created by AI, the Cop-

yright Office narrowed the original registration scope,

retaining her copyright in text, visual layout, etc., and

no longer including the part created using Midjour-

ney. The author believed that the picture was gener-

ated by AI based on the keywords she provided, and

she also used PS tools to modify the details of the

work. However, the Copyright Office believes that

these modifications are "imperceptible", the key-

words are not the "mastermind" behind the image,

and the author did not provide the necessary original

intellectual contribution to the object of the copyright

protection application. Therefore, a new certificate

was issued, which modified the scope of copyright

protection to cover only the textual content created by

the author himself.

2.2 Ability to Recognize the Originality

of AI-Generated Products

There are relevant regulations in the British legal sys-

tem that recognize the originality of works generated

by artificial intelligence. According to the explana-

tion in the Copyright, Designs and Patents Act 1988,

computer-generated content refers to "the result of in-

dependent creation by a computer without direct hu-

man intervention" (Dworkin et al.,1989). Article 9(3)

of the Act stipulates that in the case of a literary, dra-

matic, musical or artistic work generated by a com-

puter, the author shall be deemed to be the person who

made the necessary arrangements for the creation of

the work. It can be seen that British law clearly in-

cludes content generated by computers autonomously

in the category of works, and recognizes that humans

who make necessary arrangements and designs for

the creation should be recognized as authors. How-

ever, when the bill was promulgated, whether the def-

inition of computer can be applied to large-scale neu-

ral networks such as "artificial intelligence" is still

under discussion.

At the same time, in judicial practice, British

courts have repeatedly interpreted the concept of

"originality", emphasizing that the creator must show

"certain skills, judgment or labor" in the process of

creating the work, "contributions based on choice,

judgment and experience", or "investment of labor,

skills and funds" and other factors. The above legal

provisions and interpretations reflect that the British

legal system adopts relatively broad and low stand-

ards for the recognition of originality in the copyright

system. AI-generated products have the possibility of

being recognized as original and granted copyright

protection under British law (Ring, C. 2020).

2.3 Conducting Substantive

Examination on the Originality of

AI-Generated Works

China's granting of copyrights to AI-generated con-

tent reflects a process from conservative to open. In

the early "Filin v. Baidu" case and "Wang Zixin's ap-

plication for work registration was rejected" case, the

court held a conservative view of not protecting it.

The court believed that the work must be created in-

dependently by a natural person. The analysis report

automatically generated by keyword search and data

aggregation cannot demonstrate the creative labor of

people and cannot be recognized as a work in the le-

gal sense. In the subsequent "Tencent v. Yingxun"

case and the first case of text-generated images, the

court gradually held the view of granting protection

Research on Originality of AI-generated Works

and conducted a substantive review of the originality

of AI-generated works. In the "Tencent v. Yingxun"

case, the court held that the generation process of

Dreamwriter and the final external form of the article

reflected the author's personalized choice and ar-

rangement, and therefore had originality and be-

longed to the text works protected by my country's

images", the plaintiff first obtained the original pic-

ture by entering the prompt word and setting the pa-

rameters, and then continued to add prompt words

and modify the parameters. The court held that the

prompt words used by the plaintiff even reached the

complexity of the engineering level. It reflects the

plaintiff's aesthetic and personal choice, and therefore

has "originality" and is protected by copyright (Bei-

jing Internet Court. 2023).

3 ORIGINALITY ANALYSIS OF

ARTIFICIAL INTELLIGENCE

WORKS

3.1 The Negation of the Negation

Theory of Artificial Intelligence

Originality

First, the form of creation cannot negate the original-

ity of the work.The view represented by the US Cop-

yright Office is that there is a clear difference between

the "text" of the input command and the "picture" of

the work form, and the author's originality is only in

the text work and cannot involve the picture work.

But the essence of intellectual property is infor-

mation. The essence of the originality of the work is

not the order of the text and the color and geometric

structure of the picture, but the specific expression of

the author's original idea.

In the "Qiong Yao v. Yu Zheng Copyright Case".

Chen Zhe sued Yu Zheng's script "Palace Lock Lian-

cheng" and TV series for infringing his copyright in

"The Plum Blossom Mark", and eventually won the

case. In the judgment, the court gave a substantial in-

terpretation of the originality of the expression of the

work. Expression not only refers to the final form of

symbols such as words, colors, and lines. When the

content of the work is used to reflect the author's

thoughts and emotions, the content also belongs to the

expression protected by copyright law, but creativity,

materials or information in the public domain, crea-

tive forms, necessary scenes and unique or limited ex-

pressions are excluded from the protection scope of

only manifested in textual expression, but is essen-

tially the story content expressed by the text, the char-

acter settings and their mutual relationships, and the

plot composed of the occurrence, development and

sequence of specific events. When they are specific to

a certain extent, that is, the plot selection, structural

arrangement, and plot advancement design of literary

works reflect the author's unique choices, judgments,

and choices, they become original expressions pro-

tected by copyright law.

It can be seen that the final text and video are only

the carriers of the originality of the work, not the orig-

inality itself. The essence of the originality of the

work is the author's intellectual creative expression of

designing the plot and character relationships and

constructing dramatic conflicts (Grøtta, M. 2017).

Originality exists in the process of the author's crea-

tive ideas acting on the specific form of the work, so

that the work can resonate with readers and audiences

and arouse aesthetic enjoyment. The difference be-

tween text, pictures and videos cannot separate the

originality of the work (Palmer et al., 2024). In the

process of human authors creating text or picture

works through artificial intelligence, "prompt words"

are the way to convey the author's creativity,

thoughts, feelings, and designs. Whether the work is

original should be subject to substantive review rather

than formal judgment. When the way the prompt

words work and the degree of detail can precisely ar-

range the unique state of the work, the work should

be recognized as the author's original intellectual la-

bor results and should be given copyright protection.

Second, the probability added by artificial intelli-

gence cannot deny the originality of the work.An-

other view that denies the originality of works gener-

ated by artificial intelligence is that in the process of

inputting prompt words to generate text or picture

works, artificial intelligence adds uncertainty, and

there is no one-to-one correspondence between the

prompt words and the final form of the work, so the

originality of the work is denied. This view breaks

down the generation process of artificial intelligence

works into the result of the joint action of the intellec-

tual labor of human authors and artificial intelligence,

and believes that the originality comes partly from the

machine. This way of judgment does not conduct a

substantive analysis of the contributions of human au-

thors and artificial intelligence. Not only does it have

certain logical contradictions, it also violates the his-

torical evolution of the intellectual property system.

The Naruto v. Slater case is often used to discuss

the originality of artificial intelligence works

(Hooker. 2020). The monkey snatched the photogra-

pher's camera and accidentally triggered the shutter

IESD 2025 - International Conference on Innovative Education and Social Development

while playing with it, taking multiple photos. Later,

the photo was brought to court due to a copyright dis-

pute, and the final result of the trial was that the photo

was not protected by copyright (Courts of Appeals.

2018). The court held that the photographer did not

design or arrange the photo, and the monkey pressing

the shutter was just an accidental event after his cam-

era was stolen. The actual creation of the photo was

completed by the "monkey", and animals cannot be

authors in the sense of intellectual property law, so

the photo is not protected by copyright. Scholars who

hold this view believe that the role of artificial intel-

ligence is similar to that of monkeys. Since the crea-

tion is caused by accidental factors added by artificial

intelligence, it cannot be considered that the work is

original. However, the fundamental reason why the

works taken by monkeys are not original is that the

works do not contain enough original intellectual la-

bor of human authors, rather than the intervention of

monkeys. In other words, if the monkey's actions are

arranged by human authors, they can be considered to

contain sufficient originality. If the photographer has

a complete conception of the picture in advance, es-

pecially designs the shooting weather and shooting

angle, and conducts long-term special training for the

monkey for the purpose of realizing this concept, and

after thousands of trainings, the monkey makes the

"press the shutter" action that the photographer is sat-

isfied with and completes the shooting, then the photo

is of course original enough and should be recognized

as a work and given copyright protection.

Comparing the monkey selfie case with the pro-

cess of AI-generated works, we can find that the role

of AI and monkeys in the creative process can be re-

garded as both the subject of creation and an auxiliary

tool of creation. The core of the problem lies in the

way and degree of control of the original intellectual

labor of human authors on the creative process. The

judgment of originality should be combined with spe-

cific cases, and the relationship between the author

and AI should be substantively examined, and the

contribution of human authors in the creative process

should be substantively analyzed.

3.2 An Approach to Analyzing the

Originality of Artificial

Intelligence-Generated Works

How to conduct a substantive analysis of the original-

ity of AI-generated works, the core issue is to explore

how human authors and AI divide the work in the cre-

ation process, so that whether the work contains orig-

inality derived from human intellectual labor. In the

current legal theory research, there are mainly two

ways of interpreting the originality of AI-generated

works. The first is to regard AI as a creative tool, and

AI works are the result of human beings using this

new tool to create. The second is to regard AI as a

formal subject, and human authors and AI work to-

gether to complete the creation of works.

First, discuss the originality of AI works in the

creative tool theory path. The invention and progress

of creative tools have brought about the renewal and

iteration of human creative methods, which is a prob-

lem that the intellectual property system has been fac-

ing and needs to solve in its development history. As

a new creative tool, AI is efficient, interactive and in-

telligent. Similar to the new creative tools in history,

it also brings controversy over the originality of

works. The invention of the camera is of reference

significance. At that time, there was a view that pho-

tos were just the capture and fixation of the geometric

state of the spatial scene described by light in the nat-

ural state. Its shape and beauty were formed by phys-

ical laws, and the works completed by the photogra-

pher pressing the shutter were not original. The

originality of photographic works has now been gen-

erally recognized by copyright laws of various coun-

tries and is no longer controversial. However, not all

photos are original. When the human author has con-

trol and contribution in the selection of shooting

scenes, arrangement of shooting objects, design and

capture of light, timing of capture, exposure time,

etc., their originality is established.

The core of originality judgment lies in whether

the work reflects the author's creative selection, ar-

rangement and processing. As a new type of creative

tool, the originality of artificial intelligence works re-

quires the author to dominate the creative process and

control and select the creative process of the work by

inputting prompt words with creative intellectual con-

tribution. Human authors input a large number of

prompt words to make precise designs and arrange-

ments for the form of the work, and constantly correct

and optimize the state of the work. This creative

method is essentially the same as photographic crea-

tion, and it is original when it contains enough origi-

nal human intellectual labor. However, if the human

author does not make enough creative arrangements

for the specific creative content, but the content is

randomly generated by the artificial intelligence sys-

tem, the work is not original.

Second, the originality of works generated by ar-

tificial intelligence is discussed in the formal subject

theory. In the existing intellectual property system,

there is already an institutional framework that distin-

guishes the roles of the subjects in the creation, de-

Research on Originality of AI-generated Works

fines the source of originality and confirms the iden-

tity of the author. When the creative process is domi-

nated by a human author, other participants only as-

sist the author in the process of realizing their creative

arrangements and choices, and other subjects are only

the executors of the author's will. The work is finally

presented under the control and arrangement of the

author, then the work is original, and the author's cre-

ative intellectual labor is the source of originality.

In the process of AI generating works, when the

human author dominates the conception and design of

the work and directly controls and selects the form of

expression of the work, the AI in the creation only

plays the role of a recorder or skilled painter. The fi-

nal presentation of the work comes from the original

intellectual labor of the human author, then the work

is original and should be protected by copyright.

However, if the human author only puts forward sim-

ple prompts and includes asking for the opinions of

the AI, and part or all of the creative process is com-

pleted autonomously by the AI, it is similar to the hu-

man author and the AI "form subject" cooperating to

complete the creation of the work. The final form of

the work comes from the joint creation of humans and

AI, and it is impossible to determine that the work is

original, and the human author is also difficult to be

identified as a qualified author.

In summary, in the analysis path that regards AI

as a creative tool and a formal subject, the originality

of AI-generated works should be substantively exam-

ined in conjunction with the specific creative process.

Under certain conditions, that is, the human author

can control and arrange the creative process and dom-

inate the final form of the work, its originality should

be recognized and granted copyright protection.

3.3 Criteria for Determining

Originality of Works Generated by

Artificial Intelligence

By analyzing AI works in the tool theory and the for-

mal subject theory, and summarizing the situations of

originality in the two approaches, we can derive the

originality standard of AI-generated works. The sub-

ject of originality is human, and the core requirements

are "independent personality" and "intellectual crea-

tion" (Hausman. 1985). As the name suggests, origi-

nality includes two elements: "independent creation,

originating from oneself" and "a certain level of intel-

lectual creation". "Independent personality" ex-

presses the independence of the author's personality.

The creative process should be completed under the

control and choice of the author, and there should be

no situation where the creative process is dominated

by AI. "Intellectual creation" requires that the final

form of the work comes from the original intellectual

labor of the human author, rather than being gener-

ated randomly by AI. The originality standard of AI-

generated works should be constructed based on the

two elements of independent personality and intellec-

tual creation.

First, the core of the independence element is the

independence of the author's personality. Specifi-

cally, it includes two aspects: the first is the independ-

ence of the author relative to other authors, and the

second is the independence relative to AI. Human au-

thors need to lead the entire creative process. Sec-

ondly, in terms of creative elements, the work should

come from the original intellectual labor of human

authors, rather than the processing of artificial intelli-

gence. The intellectual labor invested by human au-

thors in the creative process should be recognized as

"creation", and the degree of this intellectual creation

needs to go beyond "thought" to "expression" and di-

rectly act on the "specific expression form of the

work". It should reflect the author's detailed arrange-

ment of the form of the work.

Finally, since artificial intelligence training must

be carried out through the study of massive data, in

order to prevent the intellectual property risks in the

data from continuing to the generated works. The le-

gality of the materials provided by artificial intelli-

gence should be reviewed to ensure that they do not

have defects in the sense of intellectual property, oth-

erwise it will affect the originality of the work.

In the process of reviewing specific cases, the

judgment of the independence and creativity elements

in the originality of artificial intelligence-generated

works should be carried out in terms of quality and

quantity, that is, a comprehensive judgment should be

made on the existence and level of independence and

creativity. When the human author has an independ-

ent personality, leads the creative process, and invests

a certain amount of original intellectual labor, and ar-

tificial intelligence only serves as a creative tool or as

an auxiliary creative form during the creative process,

the work should be deemed original and granted cop-

yright protection.

4 CONCLUSION

Artificial intelligence brings a subversive human-

computer interactive creation mode. Users can create

text, pictures and video works by inputting prompt

words. The emergence of a large number of AI-gen-

erated works has brought challenges to the originality

IESD 2025 - International Conference on Innovative Education and Social Development

standards of works in the existing intellectual prop-

erty system. The existence of differences in creative

forms and probability cannot deny the originality of

works. Whether in instrumentalism or formal subject

theory, AI works have the possibility of originality.

The originality of AI works includes two core ele-

ments: "independence" and "creation". The "original-

ity" standard of AI works should be judged in three

dimensions: the author's personality independence,

the originality of intellectual labor, and the legality of

the materials provided by AI, and substantive review

should be conducted in terms of quantity and quality.

Works that meet this standard should be deemed orig-

inal and protected by copyright.

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Research on Originality of AI-generated Works