Human authorship?

Posted Jun 27, 2025 12:34 UTC (Fri) by jani (subscriber, #74547)
Parent article: Supporting kernel development with large language models

I keep wondering about copyright on works that lack human authorship. I'm not talking about what went into the sausage machine, but rather what comes out.

Famously, the owner of the camera didn't get the copyright on a selfie that a monkey took: https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dis...

Obviously derivative works of copyleft code need to remain copyleft, regardless of who, or rather what, produces the modifications. But what about all new work? If an LLM produces something, how can anyone claim copyright on the result? Even if the LLM prompt is a work of art, how can the end result be? So how would you protect your vibe coding results?

Human authorship?

Posted Jun 28, 2025 2:44 UTC (Sat) by NYKevin (subscriber, #129325) [Link] (5 responses)

A wrinkle here is the fact that photos in general receive copyright protection, despite the fact that the average photographer is just pointing and shooting a phone at something that looks neat, and the device is doing all the work. The usual justification is that the photographer exercises discretion over lighting, framing, viewing angle, etc., but the average person is hardly doing any of that, at least not intentionally.

The Copyright Office has said that anything produced by an AI is ineligible for copyright protection, except to the extent it incorporates a human's work (e.g. because somebody photoshopped it after the fact). I'm... not entirely convinced they're right about that. Or at least, I'm not convinced it can be squared with the existing law on photos (and many similar kinds of less-creative works).

Human authorship?

Posted Jun 29, 2025 8:41 UTC (Sun) by interalia (subscriber, #26615) [Link] (4 responses)

I'm just a casual photographer who's used point-and-shoots pretty much my entire life, but I think any casual photographer still frames the photo to get the subject they want, adjusts the angle, and tries to ensure the subjects are lit. Sure, it's not a particularly rich or complex creative choice, but we/they still make them and it's definitely intentional.

Even if it's dubious in some cases right now, what do you think the appropriate input bar ought to be for photos to receive copyright protection? But that said, I do get what you mean that the minimal input on point-and-shoot photos seems comparable to the minimal input given to an LLM AI to produce something and hard to reconcile why one deserves protection but the other doesn't.

Human authorship?

Posted Jun 30, 2025 19:01 UTC (Mon) by NYKevin (subscriber, #129325) [Link] (3 responses)

> I'm just a casual photographer who's used point-and-shoots pretty much my entire life, but I think any casual photographer still frames the photo to get the subject they want, adjusts the angle, and tries to ensure the subjects are lit. Sure, it's not a particularly rich or complex creative choice, but we/they still make them and it's definitely intentional.

Replace "casual photographer" with "LLM user" and replace "frames the photo, adjusts the angle, etc." with "writes the prompt, tries multiple iterations, asks the LLM to refine it, etc." and maybe that will make the problem more apparent. This is even more of an issue for image generators, where we have to consider a more elaborate family of techniques such as inpainting, textual inversion, and ControlNet-like inputs. The amount of creative control a StableDiffusion user can exert over the output, when using all of those tools, is probably greater than the amount of creative control the average point-and-shoot photographer can exert without professional equipment.

> Even if it's dubious in some cases right now, what do you think the appropriate input bar ought to be for photos to receive copyright protection? But that said, I do get what you mean that the minimal input on point-and-shoot photos seems comparable to the minimal input given to an LLM AI to produce something and hard to reconcile why one deserves protection but the other doesn't.

Exactly. I don't believe the Copyright Office's position is logically coherent, and I think sooner or later some judge is going to point that out. As for where the bar ought to be, I have no idea, but it seems a bit late to change the rules for photos now, so probably it ends up being fairly low. I'm not sure we're going to get copyright protection for simple one-off "type a prompt and use the first output" cases, but anything more elaborate than that remains a grey area at best.

Human authorship?

Posted Jun 30, 2025 20:05 UTC (Mon) by Wol (subscriber, #4433) [Link] (2 responses)

The other problem, even with photography, is that the amount of creative input varies massively. And the further back in time you go, the more effort it took to even "point and shoot". Today, you point a snartphone at a bunch of friends, and the AI will take a good shot for you.

Go back to the start of common digital photography (maybe Y2K, with your typical camera being measured in K-pixels, and a 1.3MP camera being very hi-def, you still needed a fair bit of nouce, zooming, framing, to try and give you a decent chance of post-processing (if you wanted to).

A bit earlier (early 90s) I had a mid-range SLR (F90), with a good zoom and flash-gun. It still took a fair bit of creative input in selecting the shot, but the camera took good care of making sure the shot itself was good.

Go back to the 70s/80s, the Zenith was a popular camera that basically had no smarts whatsoever. In order to take a shot as good as the F90, you had to choose the f-stop and shutter speed, balance the flash against daylight, basically doing a lot of work.

Go further back to medium format, and you needed a tripod ...

With *both* AI and photography, the more you put in, the more you get out (well, that's true of life :-)

And (iirc the parent context correctly) if someone says "the output of an AI is not copyrightable", what are they going to say when someone argues "the *input* *is* copyrightable, and the output is *clearly* *derivative*". If the output of photography is copyrightable, even with minimal creative input, while the output of an AI is not even with massive creative input, then something is pretty blatantly wrong.

Cheers,
Wol

Human authorship?

Posted Jul 1, 2025 10:46 UTC (Tue) by anselm (subscriber, #2796) [Link] (1 responses)

If the output of photography is copyrightable, even with minimal creative input, while the output of an AI is not even with massive creative input, then something is pretty blatantly wrong.

At least here in Germany, copyright law differentiates between run-of-the-mill snapshot photography and photography as art, based on a “threshold of originality”. The latter gets full copyright protection and the former doesn't – there is still some protection but, for example, it doesn't last as long as it would otherwise.

IMHO, the analogy with photography falls flat because a point-and-shoot camera will, to all intents and purposes, produce reproducible results given the same framing, lighting conditions, etc. (which is generally considered a feature if you're a photographer). AIUI, with AI there is no unique deterministic relationship between the prompt you're entering and what the AI produces. If you feed your AI image generator (or what have you) the same prompt twice in a row you will probably get different results, so the output does not depend solely on the human effort on the input side. To my understanding this would conflict, e.g., with German copyright law, which stipulates – at least for now – that copyright protection is available exclusively for “personal intellectual creations” by human beings.

Human authorship?

Posted Jul 1, 2025 17:49 UTC (Tue) by excors (subscriber, #95769) [Link]

> AIUI, with AI there is no unique deterministic relationship between the prompt you're entering and what the AI produces. If you feed your AI image generator (or what have you) the same prompt twice in a row you will probably get different results, so the output does not depend solely on the human effort on the input side.

It generally isn't non-deterministic, but it is pseudorandom. The input includes the prompt plus a PRNG seed; if you use the same prompt and seed, and sufficiently similar software and hardware, then you should get exactly the same output. (Some UIs might not let you set the seed, but that's just a UI limitation.)

With image generators there's also some coherence across prompts: if you use the same seed with two similar but different prompts, you'll probably get similar but different outputs. So you can generate a bunch of images with one prompt across many arbitrary seeds, pick your favourite, then reuse the seed and tweak the prompt to get a variation on that image; it's not completely chaotic and unpredictable. (They work by starting with an image of pure noise, then progressively denoising it guided by the prompt. Using the same seed means starting with the same noise, and it seems a lot of the output's high-level structure is determined by that noise and is preserved through all the denoising.)

Human authorship?

Posted Jul 1, 2025 10:30 UTC (Tue) by paulj (subscriber, #341) [Link] (7 responses)

Does this mean that companies moving to AI-coding will be producing code they hold no copyright over (because being machine produced, there simply is no [new] copyright created in the output)? If someone produces an app / a piece of software that is 100% AI generated, will others be able to redistribute as they wish?

Human authorship?

Posted Jul 1, 2025 11:14 UTC (Tue) by jani (subscriber, #74547) [Link] (1 responses)

I think at this point the only thing we can say with any certainty is that we're going to see plenty of litigation and lobbying to protect corporate interests, both for LLM input *and* output.

Human authorship?

Posted Jul 1, 2025 16:18 UTC (Tue) by paulj (subscriber, #341) [Link]

It's going to be fascinating. There are corporate interests on both sides of this fence - in a number of cases, the /same/ corporate. ;) Different jurisdictions may well come to different answers too.

Human authorship?

Posted Jul 1, 2025 16:00 UTC (Tue) by kleptog (subscriber, #1183) [Link]

At least in NL law, the copyright belongs to the person that made the creative choices. In other words, no AI tool can ever produce anything copyrightable by itself. The user who made the creative choices that lead to the output has the copyright. This is the same principle that prevents Microsoft from claiming copyright over your Word documents, or a compiler writer claiming copyright over your binaries.

If those companies somewhere in the chain include a human who is deciding which AI output is acceptable and which isn't, then that would be copyrightable. Even if they were just writing a program that did the evaluation for them. Although I expect the actual protection to be somewhat commensurate to the amount of effort. And if you're talking to a chatbot, the output is copyright of the person typing.

This is Civil Law, so by statute and no court case can change that. At best the courts can prod the legislature to tell them the law might need updating, but that's it. The US being Common Law however is likely to attract a lot of litigation, unless the legislature explicitly goes to fix it.

Human authorship?

Posted Jul 1, 2025 18:37 UTC (Tue) by Cyberax (✭ supporter ✭, #52523) [Link] (3 responses)

It's likely that only non-trivial _prompts_ will be copyrighted.

I can see that in future source code repos will have the LLM-generated source code along with the list of prompts that resulted in it. And then lawyers will argue where exactly the copyright protection is going to stop. E.g. if a prompt "a website with the list of issues extracted from Bugzilla" is creative enough or if it's just a statement of requirements.

Human authorship?

Posted Jul 2, 2025 13:43 UTC (Wed) by kleptog (subscriber, #1183) [Link] (2 responses)

> It's likely that only non-trivial _prompts_ will be copyrighted.

If the prompt is copyrightable, then the output is too. An LLM is just a tool. Photos don't lose copyright by feeding them through a tool, so why would an LLM be any different? You'd have to somehow argue that an LLM is somehow a fundamentally different kind of tool than anything else you use to process text, which I don't think is a supportable idea.

Human authorship?

Posted Jul 2, 2025 14:24 UTC (Wed) by jani (subscriber, #74547) [Link]

> If the prompt is copyrightable, then the output is too.

It's just not that clear cut: https://www.skadden.com/insights/publications/2025/02/cop...

Human authorship?

Posted Jul 2, 2025 18:55 UTC (Wed) by Cyberax (✭ supporter ✭, #52523) [Link]

But _where_ does the copyright start? A prompt may be copyrightable if it's specific enough. And edits made by humans to the generated code are likely to be copyrightable.

But suppose we have this case, you build a web service to track sleep times using an LLM. And then I build a service to track the blood sugar data using an LLM.

The source code for them ends up 95% identical, just because there are so many ways to generate a simple CRUD app and we both used the same LLM version. And if you had looked at these two code bases 15 years ago, it would have been a clear-cut case of copyright infringement.

But clearly, this can't be the case anymore. Mere similarity of the code can't be used as an argument when LLMs are at play.