Same standard, two outcomes: what decides the authorship of an AI image

For months I have been turning over various thoughts about AI tools — mostly the ones that touch and intersect with my work as an archviz artist. The main noise around AI image generation is about immediacy and the lack of judgement or direction, though honestly both come bundled with basic AI. Let me qualify that: a lack of judgement does not necessarily mean a lack of taste, but that is another conversation.

In this battle of crossed arguments between conservatives, denialists and "bros", one subject keeps slipping away: copyright. Authorship. Who owns what we generate? It helps to separate two planes that are almost always confused. The first is contractual: what each platform's terms let you do with the image — whether you can use it commercially, for instance. The second is legal: whether that image is protected by copyright against the whole world, something no platform decides. The law does.

On the contractual plane there is a telling nuance: the big platforms do not claim ownership of what you generate. Google/Gemini says so expressly: "Google won't claim ownership over that content." But not claiming ownership does not mean you hold copyright; it only means they will not dispute it. What is more, that content is not exclusive either. The terms themselves warn that they may generate the same thing, or something similar, for someone else: "You acknowledge that Google may generate the same or similar content for others and that we reserve all rights to do so." (A different matter is the licence you grant when you upload an image of your own as a base: you remain its owner, but you authorise Google to use it to provide and improve the service.) Having permission to use something, in short, is not the same as having authorship.

Months ago I came across the case of Kris Kashtanova. With a path running through software engineering in Moscow, photography in London and consulting, today she is a Sr. Creative AI Evangelist & Community Advocate in the United States. In September 2022 she filed a graphic novel, Zarya of the Dawn, with the US Copyright Office and obtained registration. In February 2023, however, that same office withdrew the copyright registration for the illustrations because they had been generated with Midjourney. It did not deny her authorship of the script or of the arrangement — the selection, coordination and disposition of the elements — only of the images.

During the proceedings, Kris argued her authorship by pointing to the hundreds of prompt iterations she had made. The office reasoned the opposite: that prompts "function closer to suggestions than orders, similar to the situation of a client who hires an artist to create an image with general directions as to its contents". And it concluded that whoever writes prompts does not actually form the image, nor is the "master mind" behind it, because Midjourney generates the result unpredictably.

I understand it best through patronage. However tightly you brief a commission (light, perspective, scene, framing), the authorship of the work belongs to whoever executes it, not to whoever commissions it. The same happens when a platform commissions "a period drama with dragons": ordering a kind of content does not make it the owner of the idea, nor the scriptwriter, nor the director. It brings the money and the desire. Others create.

If we want to keep subjectivity out of it, these points are for you:

Spain (TRLPI, RDLeg 1/1996): the author is a natural person; the work must be an original creation, the fruit of human ingenuity.

France (CPI, art. L.111-1): the work is protected from its creation alone; case law further requires that it carry "l'empreinte de la personnalité de l'auteur", the imprint of the author's personality, as the standard of originality (not the literal text of the article).

EU (CJEU): the Infopaq standard (C-5/08), "the author's own intellectual creation"; Painer (C-145/10), originality in free and creative choices (framing, light, atmosphere).

Three ways of saying the same thing: without a human behind it making the executive decisions, there is no protected work.

That is why, in the case of Kent Keirsey's A Single Piece of American Cheese, authorship of the image was granted. The workflow was not prompting alone: here, the more than 35 rounds of inpainting along the way supplied the traits of human selection, coordination and arrangement, and made it possible to establish how much real control Kent had over the result. It was, in fact, the first AI-generated image registered by the US office under its 2025 guidelines. For an idea to exist with intention inside an image, direction — especially direction with judgement — is the pillar. Coherence, the reading of the space, colour, light... they mark the difference between an image created and an image generated.

We understand that two people, or two teams, can set out from the same concept and end up with two different works, because each one distils the identity of whoever made it. They coexist without stepping on each other. That is what the law calls the author's imprint, and it is exactly what it protects. Generative AI as commonly used does not start from your identity, but from millions of other people's images that it recombines. There is no guarantee that someone else's identity has not slipped in along the way, nor that yours is truly inside. That is why the idea must be built from image direction with judgement, so that it is coherent and has an identity of its own. Raw generation, without human control over the executive decisions, yields an authorship that is hard to sustain.

Bibliography and sources

U.S. Copyright Office, Zarya of the Dawn, letter of 21 Feb 2023 (Reg. VAu001480196). copyright.gov

U.S. Copyright Office, A Single Piece of American Cheese (Invoke/Kent Keirsey), 30 Jan 2025. Report

Harvard Journal of Sports & Entertainment Law, on the registration of A Single Piece of American Cheese. journals.law.harvard.edu

Gemini API Additional Terms of Service (Google), "Use of Generated Content". ai.google.dev

Spain, TRLPI, RDLeg 1/1996 (art. 5.1). BOE

France, CPI, art. L.111-1. Légifrance

CJEU, Infopaq, C-5/08. EUR-Lex

CJEU, Painer, C-145/10. EUR-Lex

Biographical details of Kris Kashtanova. LinkedIn

Note: this article is informative in nature; it does not constitute legal advice.