By Cesar Augusto Taborda Lima
Under Brazilian law, only a natural person can be an author. An image, text or piece of music produced by an AI system without human creative input has no author and, as I see it, attracts no copyright; what a person adds, such as their own text, the selection and arrangement of material and changes to the output, can be protected. US and EU law reason similarly, and the UK government has proposed abolishing its special rule for computer-generated works. A business should document the human contribution, adjust its contracts and use other tools where copyright does not reach.
The author is the natural person who creates a literary, artistic or scientific work.
Sole paragraph. The protection granted to the author may apply to legal entities in the cases provided for in this Law.
Law 9,610/1998 (Brazilian Copyright Act), art. 11, head provision and sole paragraph (free translation).
The Brazilian rule
The Brazilian Copyright Act protects “creations of the spirit” (art. 7), defines the author as the natural person who creates a work (art. 11) and vests the moral and economic rights in that person (art. 22). It says nothing specific about AI output. A legal entity is protected only where the Act so provides, as with the organiser of a collective work (art. 17(2)). A company is therefore not the author of what the tool generates; it can hold the rights in its people’s contribution by assignment, always in writing (art. 50).
Ideas as such are not protected (art. 8, I). A prompt asking for “a lighthouse at dusk, in watercolour” conveys an idea; the system decides the final form. A prompt alone is unlikely to make anyone an author.
On patents, the INPI (Brazil’s National Institute of Industrial Property) withdrew an international application from the national phase in 2022, relying on an opinion of its legal office that AI cannot be named as an inventor (RPI 2696).
Brazil’s AI bill (PL 2.338/2023) passed the Federal Senate on 10 December 2024 and awaits the report of a special committee of the Chamber of Deputies, the lower house; it is not law. Its copyright section (arts. 62 to 66) concerns the use of works in AI development: a public summary of the protected content used, an exception for non-commercial text and data mining by research and educational institutions, museums, archives and libraries, a right for rightholders to refuse use outside that exception, and remuneration for use in training. It does not address who authors the output.
United States: human authorship, case by case
In Thaler v. Perlmutter, the US Court of Appeals for the D.C. Circuit held on 18 March 2025 that the Copyright Act requires all eligible work to be authored in the first instance by a human being, and upheld the refusal to register an image whose only listed author was an AI system. The Supreme Court denied certiorari on 2 March 2026 (No. 25-449).
In its January 2025 report, the US Copyright Office concluded that existing law is adequate. Using AI as a tool does not affect protection; purely AI-generated material, or material whose expressive elements lacked sufficient human control, is not protected; and, with the generally available technology of the time, prompts alone do not give that control. Protection extends to human works perceptible in the output, to the creative selection, coordination or arrangement of material and to creative modifications, always case by case.
In its 2023 decision on the comic book Zarya of the Dawn, the Office recognised human authorship of the text and of the selection and arrangement of its elements, but not of the images generated with Midjourney, and replaced the original certificate with a narrower one. Applicants must disclose AI-generated content, exclude it from the claim where it is more than de minimis and describe the human contribution (88 Fed. Reg. 16190, 16 March 2023); failing to do so exposes the registration to cancellation.
European Union and United Kingdom
In EU law, protection requires original subject matter, in the sense of the “author’s own intellectual creation” (Infopaq, C-5/08, 2009, para. 37), which is the case where the work reflects the author’s personality as expressed in free and creative choices (Painer, C-145/10, 2011, paras 88 and 89; Cofemel, C-683/17, 2019, para. 30). The test presupposes human choices.
The United Kingdom has its own rule: for a work generated by computer in circumstances where there is no human author, the author is taken to be the person by whom the arrangements necessary for its creation are undertaken (Copyright, Designs and Patents Act 1988, s. 9(3), and s. 178), and protection lasts 50 years (s. 12(7)). Following a consultation that closed in February 2025, the government proposed, in a report laid before Parliament in March 2026, to remove this specific protection while copyright continues to protect works created with AI assistance. The rule remains in force.
Protecting what a business creates with AI
Some steps help prove the human contribution:
- keep dated versions, drafts, prompts, choices between alternatives and later edits;
- provide in contracts with employees, contractors and agencies for a written assignment of rights, disclosure of AI use and a duty to keep those records, since Brazilian law construes copyright transactions restrictively (art. 4 of Law 9,610/1998);
- read the vendor’s terms: who holds the output, whether inputs may be used for training, and whether, and on what conditions, the vendor will defend third-party infringement claims and bear their cost; an assignment to the user of the vendor’s rights in the output, “if any”, creates no protection where the law recognises none;
- disclose the use of AI where a registration office requires it, as in the United States; in Brazil, protection does not depend on registration (art. 18).
What copyright leaves out may be protected otherwise. A Brazilian trade mark requires a visually perceptible distinctive sign not caught by the statutory prohibitions (art. 122 of Law 9,279/1996, the Industrial Property Law), requirements unrelated to authorship; an AI-generated logo can be registered if it meets them. Confidential prompt libraries and workflows are protected by confidentiality clauses and by the unfair competition rules (art. 195, XI). Contract, finally, can limit how clients and partners use the material, though it binds only the parties.
A business that needs exclusivity over a piece of work should make sure it contains identifiable, documented human work, and treat the tool’s raw output as material that, on its own, is unlikely to stop copying. It is wise to decide before launch where AI comes in and where human work is reserved, and to record that choice.