The advancement of artificial intelligence (AI) has radically transformed how content is created, from images and texts to music and audiovisual works. This new reality has sparked increasingly relevant debates about copyright protection, not only concerning the use of copyrighted works and content for AI training (inputs) but also the protection of rights for works generated by AI (outputs), especially given the challenges this technology poses to the traditional legal framework.
In Brazil and worldwide, law firms specializing in intellectual property have been called upon to analyze increasingly complex situations: who is the author of a work created by AI? Is it possible to protect this type of work under copyright law? How can the misuse of content generated by or with the aid of AI be prevented? In this article, we address these questions based on Brazilian legislation, recent international decisions, and practical experience with the topic.
The concept of authorship in Brazilian law
According to the Copyright Law (Law No. 9,610/98), creations of the spirit, expressed by any means or fixed in any tangible or intangible medium, are protected. Authorship, therefore, is intimately linked to the human figure, to their creativity, intention, and originality. Thus, by express legal provision, the author of an intellectual work is always a natural person.
For this reason, works created autonomously by AI systems, without direct human creative intervention, cannot yet be protected by copyright in Brazil. The position of the United States Copyright Office follows a similar line, recognizing that works generated exclusively by AI are not eligible for protection unless there is significant human contribution.
The issue becomes even more challenging when the work is the result of a collaborative process between a person and an AI system. In this case, it is necessary to assess the extent to which the creation results from human creative decisions, based on a meticulous legal analysis.
AI as a tool or as an author?
The distinction between AI as a tool and AI as a creative agent is fundamental to understanding the possible paths for protecting works generated with the aid of automated technologies.
When an author uses AI software as a tool, guiding and selecting results based on their own criteria and creative objectives, copyright protection tends to be recognized. This is the case, for example, of a designer who uses AI to accelerate the creative process but defines the composition, style, and final colors of the work. In this situation, it is possible to argue for the ownership of copyright over the generated work.
On the other hand, when AI operates autonomously, without significant human direction or curation, or with a small or insignificant human input, as in the case of generative AIs, the resulting work may not be eligible for protection.
International debates
Although the Brazilian legal system does not yet have specific legislation, the topic has been intensely debated, including in the National Congress with emphasis on Bill 2,338 (PL 2,338). While we do not have a legal framework on AI, international debates help illuminate the possible paths that may be taken.
In the United States, in February 2023, the U.S. Copyright Office decided that the images in the graphic novel “Zarya of the Dawn,” generated by the Midjourney AI system, are not protected by copyright. Thus, the author could only claim protection for the parts she personally wrote and organized, not for the images created by AI.
Shortly thereafter, in March 2023, the U.S. Copyright Office published the Guide “Works Containing Material Generated by Artificial Intelligence,” requiring applicants to identify, in registration applications, which parts of the work are of human authorship (https://www.federalregister.gov/documents/2023/03/16/2023-05321/copyright-registration-guidance-works-containing-material-generated-by-artificial-intelligence). More recently, the U.S. Copyright Office published the Report on Copyright and Artificial Intelligence, which analyzes copyright and public policy issues related to AI. This report is being published in several parts. Part 1, published on July 31, 2024, addresses the topic of digital replicas; Part 2, published on January 29, 2025, addresses the copyrightability of creations generated by generative AI; and Part 3 had a preliminary version released on May 9, 2025, in response to congressional inquiries and interest expressed by various stakeholders. The final version will still be published.
In the European Union, discussions about the ownership of AI-assisted works have led to the proposal of regulatory models that ensure protection for the human creator, provided their contribution is relevant. In the United Kingdom, there are legislative initiatives that seek to assign temporary copyrights to works generated by AI, with ownership attributed to the system operator.
The classification of AI-generated content as a work was analyzed in the European Commission’s final report on trends and developments in AI, published in 2020 (https://op.europa.eu/en/publication-detail/-/publication/394345a1-2ecf-11eb-b27b-01aa75ed71a1/language-en#). According to the report, an object generated by AI can be considered a work for copyright protection purposes if it meets the following criteria: (a) falls within the literary, scientific, or artistic scope; (b) results from human intellectual activity; (c) reflects the creative choices of the individual who materialized them in the object.
In all these cases, the human element remains the determining factor for legal protection. This reflects a global understanding: copyright is designed to protect human creativity and expression – even if mediated by new technological tools.
Risks and challenges for companies and creators
Companies that use AI for content creation, such as marketing agencies, audiovisual producers, game developers, and design studios, need to be aware of the risks associated with the authorship and originality of works generated by automated systems.
Some of these risks include:
- Lack of legal protection: works entirely generated by AI may not be protected by copyright, which makes them vulnerable to copying and misuse by third parties;
- Third-party claims: AI-generated content may inadvertently reproduce elements of protected works without proper licensing, leading to legal disputes;
- Challenges in contracts: the lack of clarity about the ownership of creations can hinder the negotiation and formalization of contracts with clients, partners, and collaborators;
- Reputation and compliance: the unethical or unauthorized use of AI tools can damage the company’s reputation and lead to legal and regulatory compliance problems.
These factors make it essential to adopt a clear policy on the use of artificial intelligence in content creation, with specialized legal advice.
The importance of specialized legal advice
Given the speed with which AI technologies are evolving and integrating into creative and productive routines, the involvement of lawyers specializing in intellectual property becomes indispensable. Qualified professionals can offer support ranging from analyzing the protection of a work to structuring contracts, evaluating risks, and strategic planning for the ethical and secure use of AI.
Legal guidance is especially relevant for:
- Correctly defining the owners of rights over AI-assisted works;
- Assessing the degree of originality and human authorship necessary for protection;
- Drafting contracts that ensure proper ownership and licensing;
- Preventing conflicts related to copyright infringement or misuse of third-party works;
- Representing clients in judicial or administrative disputes related to the topic.
Artificial intelligence and copyright
Artificial intelligence represents a new frontier for human creativity, offering unprecedented possibilities for content production. However, these innovations also challenge the traditional foundations of copyright law, requiring careful interpretations and, often, personalized legal solutions.
In a constantly transforming scenario, companies and professionals working with content creation need to be aware of the legal limits, protection possibilities, and risks involved in using AI.
Counting on the support of professionals from Ricci is the best way to ensure legal security, value intangible assets generated, and make strategic decisions with confidence.
