According to Eurostat data, nearly 20% of EU enterprises use AI tools, while almost 9.5% use them to generate images, videos, or audio (Eurostat — DDN-20251211-2). In Poland, the percentage of companies using AI is lower — 8.36% — but it is growing every quarter. Along with it, the number of marketing, product, and brand assets created with the help of generative AI is also increasing.
And this is where a problem arises that few people discuss openly: a significant proportion of these materials may have no copyright protection whatsoever. Not in Poland, the EU, or the US.
The headline “The US authorities registered an AI-generated image!” circulated on LinkedIn hundreds of times. The problem is that it is not true. And the actual substance of the decision by the U.S. Copyright Office (USCO) is far less convenient for your company than the headline suggests.
In this article, I explain what the USCO actually decided in the “American Cheese” case, how this translates into Polish and EU copyright law for AI-generated content, and — most importantly — what you need to do to prevent your company’s assets from proving worthless during the next IP audit or due diligence process.
Key concepts before we move on
Before we delve into the details, it is worth clarifying a few terms that will appear later in the article.
| Concept | What it means |
|---|---|
| USCO | U.S. Copyright Office — the US authority that registers works and issues decisions refusing registration |
| Work (within the meaning of copyright law) | Any manifestation of creative activity of an individual nature, established in any form — as defined in Article 1(1) of the Polish Copyright Act |
| Human authorship requirement | The requirement of human authorship — a principle applied by the USCO (and not only the USCO), under which protection extends solely to a human’s creative contribution |
| Inpainting | A technique involving the modification of parts of an AI-generated image — e.g. painting over, retouching, or replacing elements. It shows where generation ends and human intervention begins |
| Selection and arrangement | Under US copyright law, protection may cover how a person selected and arranged elements, even if the elements themselves are not protected |
| AI Act | EU Regulation 2024/1689 on artificial intelligence — it regulates the obligations of providers and users of AI systems but does not create copyright protection for AI outputs |
| IP due diligence | A legal audit of intellectual property, most commonly conducted before an investment, funding round, or M&A transaction |
What the USCO actually decided in the “American Cheese” case
Let us begin with what did not happen: the USCO did not register an AI-generated image.
In the “A Single Piece of American Cheese” case, the author created a collage from AI-generated elements using an inpainting technique — he independently modified parts of the image, selected the composition, and decided on the arrangement. The USCO protected only his selection and arrangement of the individual elements. All AI-generated elements were expressly excluded from registration.
This is not a new line of authority. It confirms the position that the USCO has maintained for years.
Earlier decisions confirming the same principle
A similar approach was previously applied to Kristina Kashtanova’s comic book “Zarya of the Dawn”. The text and the selection and arrangement of the images received protection — but the images generated in Midjourney did not. Moreover, the author herself disclosed on social media that the comic had been created with the help of AI, which prompted the USCO to review the registration.
The position was confirmed even more clearly in Thaler v. Perlmutter (No. 22-cv-01564, D.D.C., August 18, 2023) — the court upheld the refusal to register and found that “human authorship is a bedrock requirement of copyright” (USCO — district court decision).
The principle is simple
Simply entering a prompt and clicking “generate” does not make you an author within the meaning of copyright law. Protection begins where a genuine, documented human contribution begins. And — just as importantly — it ends where that contribution ends.
How this works under Polish copyright law
The Polish Act of February 4, 1994 on Copyright and Related Rights defines a work as “any manifestation of creative activity of an individual nature, established in any form” (Article 1(1)) (Copyright Act — ISAP).
These requirements are cumulative: creative activity + individual nature + fixation.
Something created exclusively by AI does not satisfy the first requirement — it is not a manifestation of human creative activity. This interpretive position is confirmed, among other sources, in materials published by the NCBR (NCBR — intellectual property).
What this means for your company
| Scenario | Does copyright protection arise? |
|---|---|
| An image generated with a prompt without any further intervention | Probably not — there is no manifestation of human creative activity |
| A collage of AI-generated elements, independently arranged and modified | Potentially — to the extent of the human contribution (selection, composition, retouching) |
| AI-generated text that has been edited and restructured | Potentially — to the extent of the human’s creative editing |
| A company logo generated entirely by AI | Probably not — and this is particularly risky because a logo is a core brand asset |
It must be stated clearly: there is no binding Polish judgment establishing the minimum level of human contribution required when creating with AI. We are still waiting for the courts to rule on this issue. But the absence of a judgment does not mean the absence of risk — it means uncertainty, and uncertainty in IP law translates into specific business problems.
EU law: the AI Act does not protect your content
Many companies assume that because the EU has regulated AI, it must also have “somehow” regulated rights to AI outputs. This is a mistake.
The AI Act (EU Regulation 2024/1689) expressly states in Article 2(5) and Recital 107 that it does not affect the enforcement of EU copyright law (AI Act — EUR-Lex PL). It does not establish copyright protection for AI outputs. It does not determine who is the author of AI-generated content.
The AI Act does, however, impose obligations on providers and users of AI systems regarding transparency — and these obligations will begin to be enforced from August 2, 2026.
AI Act content-labeling obligations (Article 50)
| Obligation | Who it applies to | Effective from |
|---|---|---|
| Labeling AI outputs in a machine-readable format | Providers of AI systems that generate synthetic content | August 2, 2026 |
| Disclosure of deepfake content | Deployers of AI systems | August 2, 2026 |
| Disclosure of interaction with AI | Providers of AI systems intended to interact directly with natural persons | August 2, 2026 |
Manually adding “generated by AI” is not specified in the legislation as a sufficient means of fulfilling this obligation — the requirement is technological (watermarks, metadata, cryptographic methods).
Exception: the obligation to disclose AI-generated text does not apply where the content has undergone human review or editorial control and a natural or legal person holds editorial responsibility for its publication. This is an interesting analogy to the concept of human contribution in USCO decisions — in both cases, genuine human intervention changes the legal status of the content.
There is no confirmed CJEU judgment from 2024–2026 concerning the authorship or protection of an AI-generated work. The issue remains open — which is precisely why it is risky. It is also worth understanding what constitutes an AI system within the meaning of the AI Act in order to correctly assess how these provisions apply to specific tools.
Contact us — we will help you assess whether your assets meet the requirements for copyright protection in Poland and the EU.
AI tool terms and conditions are not a substitute for copyright law
Another common mistake is: “OpenAI’s terms say that I own the output, so I own the copyright.”
That is not how it works.
What the terms and conditions say
- OpenAI (European terms): the user “owns” the output; OpenAI assigns to the user any rights to the output that OpenAI may have. However, OpenAI does not guarantee exclusivity — the output may be similar or identical to that of other users (OpenAI — EU terms). The detailed liability rules for Azure OpenAI demonstrate how complex this issue is in corporate environments.
- Adobe Firefly: outputs from features not labeled “Beta” may be used commercially. However, Adobe does not confirm the assignment of economic copyrights to every output — it confirms only a functional right to commercial use (Adobe Firefly FAQ)
- Midjourney: there is no confirmed, up-to-date version of its terms concerning ownership of outputs and the scope of the license — there is therefore no basis for drawing conclusions about users’ rights
What the terms and conditions do not provide
A provision in the terms stating that “the user owns the output” governs the contractual relationship with the tool provider. It does not create statutory copyright protection. It does not make the output a work within the meaning of Article 1(1) of the Polish Copyright Act. It does not give you exclusivity — because your competitor may generate an identical output.
The terms and conditions are a contract between you and the provider. Copyright law is a system of protection that applies against everyone. These are two entirely different mechanisms.
Business risks: why this is not just a “legal issue”
The lack of copyright protection for AI-generated assets is not an abstract legal problem. It is a risk that affects company valuation, client relationships, and negotiating leverage.
Five scenarios in which the lack of protection harms your business
| Scenario | Risk | Severity |
|---|---|---|
| A competitor copies your product images | No basis for a claim — the materials are not protected | High |
| An agency sells you a campaign with a representation that the rights have been assigned | The agency makes a representation regarding rights it does not own — risk of contractual liability | High |
| IP due diligence before an investment round | Lack of documentation of the creative process reduces the valuation of intangible assets | Medium |
| A freelancer supplies “original” illustrations for an app | No evidence of human contribution — even if such a contribution genuinely existed, the company cannot prove it | High |
| A marketing manager reads on LinkedIn that “the USCO registered an AI image” | They decide not to audit the assets — a decision based on a false headline | Medium |
Companies that build value through their IP portfolios — SaaS startups, software houses, creative agencies, and e-commerce businesses with their own brands — need to know which of their materials are protected and which are not. And they need to know this before an investor, client, or competitor asks.
What to do: specific steps for your company
Protection does not arise within the tool. It arises through the process — and that process must be documented. Below is a list of measures arranged by priority.
Measures you need to take now
- Conduct an inventory of assets created with the help of AI over the last 24 months — images, videos, illustrations, code, and text. Flag those for which you do not have evidence of a human creative contribution
- Introduce a requirement to archive the complete creation history: prompts, successive file versions, source files, screenshots from editing stages, and descriptions of your own interventions (inpainting, retouching, composition, selection and arrangement of elements)
- Change your content production process so that every published asset undergoes a stage of genuine, measurable human modification — AI should be used as an input tool, not as the finished product
- Update contracts with agencies, freelancers, and software houses: add an obligation to disclose the use of AI tools, provide documentation of the creative process, and make a representation regarding the extent to which the contractor genuinely owns the copyright
Measures you should plan
- Review your standard sales and service agreements — remove or limit unconditional representations concerning the assignment of all copyright in materials co-created with AI
- Develop an AI use policy with a list of approved tools, documentation rules, and an indication of which materials must not be created solely through generative methods (e.g. logos, marks, brand assets)
- Train your marketing, design, and product teams on the principle that “a prompt is not authorship” and on how to document creative contributions in practice
Measures worth considering
- For your most important brand assets, consider alternative forms of protection — a trademark (Article 120(1) of the Polish Industrial Property Law), an industrial design (Article 105(1)), or an EU trademark (EU Regulation 2017/1001). The fact that an asset was generated by AI does not rule out these forms of protection, but each has its own statutory requirements (Industrial Property Law — ISAP)
How to document the creative process — the minimum evidence required
The strongest evidentiary chain is: prompt → model output → selection → human intervention → successive versions → final file. File versioning is more important than the prompt itself — because it demonstrates the person’s actual contribution.
There is no general statutory obligation to retain prompts when creating works with the help of AI. But the absence of a retention obligation is not the same as the absence of a need to retain them. If you have no evidence, you have no protection.
How we can help
We combine IP law, IT law, and experience advising technology companies. We do not divide our work into separate areas — we bring them together in a single model tailored to how your company actually creates and commercializes content.
Our support includes:
- IP audit of assets created with the help of AI — inventory of materials, assessment of the level of protection, and identification of gaps
- Review and update of contracts with agencies, freelancers, and software houses — clauses on AI disclosure, documentation of the creative process, and representations regarding rights
- Implementation of a standard for documenting creative contributions — rules for archiving, versioning, and describing human intervention
- Development of an AI use policy — approved tools, working practices, and exclusions for brand assets
- Preparation for IP due diligence — organizing your IP portfolio before a funding round or transaction
We do not create documents “just in case”. We design rules where risk or value actually arises — from development through to sales.
Copyright in AI-generated content in 2026 — key takeaways
The USCO’s decision in the “American Cheese” case did not change the law. It confirmed what has long been the rule: copyright protection requires a human creative contribution. A prompt is not enough. Clicking “generate” is not enough.
The principle is analogous in Poland and the EU — a work must be a manifestation of creative activity of an individual nature. The AI Act does not create new protection. Tool terms and conditions are not a substitute for copyright law.
If your company generates content with the help of AI, check whether you have evidence of creative contributions, update your contracts, and organize your documentation process. The sooner you do so, the lower your risk during your next audit, due diligence process, or dispute.
Need support with an IP audit, contract review, or implementing a documentation standard? Contact us — we will help you organize this area before it becomes a problem.
Frequently asked questions
Do we own the materials that my team generated using AI?
If a material was created solely by generating it with a prompt — without any further creative human intervention — it is probably not a work within the meaning of copyright law. You do not have exclusivity over it and cannot prevent competitors from copying it. The tool’s terms and conditions (e.g. OpenAI’s) give you the right to use it commercially but do not create copyright protection against third parties.
How much do I have to “add myself” for protection to arise?
There is no clear answer — there is no binding Polish judgment establishing the minimum required level of contribution. USCO decisions indicate that creative selection, composition, retouching, and restructuring of the arrangement may justify protection of the human contribution. But protection will cover only that contribution — not the entire generated material. Document every stage of your work so that you can prove your contribution in the event of a dispute.
Is the USCO’s position relevant if I operate in Poland and the EU?
Not directly — USCO decisions are not binding on Polish courts. But the principle is analogous: the Polish Act requires a “manifestation of creative activity of an individual nature” (Article 1(1)), while the AI Act expressly states that it does not affect copyright law. In both systems, protection requires a human contribution. USCO decisions show how the authority assesses that contribution in specific cases — and this provides a useful point of reference.
Can I legitimately sign a contract assigning rights to AI-assisted creative work to a client?
You may assign rights to elements that constitute protected works and to which you own the rights. An unconditional representation that you are assigning “all copyright” in AI-generated material is risky — you are making a representation regarding rights that you may not own. A safer approach is to separate these issues: disclose the use of AI, document the creative process, assign rights to protected elements, and identify elements that cannot be assigned.
Does the AI Act require me to label AI-generated content?
From August 2, 2026, providers of AI systems that generate synthetic content must ensure that it is labeled in a machine-readable format. Deployers of AI systems that generate deepfakes must disclose this fact. An exception applies to content that has undergone human editorial review — but the AI Act does not create any copyright protection for such content.
How can I protect logos and brand assets if copyright law does not help?
Consider alternative forms of protection: registering a trademark (in Poland or as an EU trademark), registering an industrial design, or protecting the asset as a trade secret. Each of these options has its own statutory requirements, independently of whether the content was generated by AI. Your most important brand assets — logos and visual identity — should not be created exclusively through generative methods because the risk of having no protection is particularly serious in their case.
