Katia Aguilar
Although some still perceive artificial intelligence as taboo, trap, or a simple shortcut, the truth is that it has become part of our daily lives. Today, it is present in many aspects of our daily lives: it suggests what to watch on streaming platforms, assists us in our daily activities, and, increasingly, is capable of generating complex content such as texts, images, works of art, literature, music, and innovative designs, integrating almost naturally into the way we create, work, and consume culture.
But beyond its practical use, AI raises an increasingly relevant debate in the legal sphere: what happens to intellectual property when a machine is capable of creating these works? Who owns what is generated by an algorithm such as ChatGPT, Gemini, or Claude? These questions make us reflect on how AI can generate creative content, who is the true author of these works, who owns the economic and moral rights, and what it really means to innovate in a world where the line between human and machine is becoming increasingly blurred.
Intellectual property, according to Spanish, European, and comparative law, refers to any creation of the human mind. This principle establishes that authorship and derivative rights belong exclusively to a natural person, taking into account that creativity and originality are unique to human intellect. However, the rise of tools capable of autonomously generating texts, illustrations, musical compositions, or complex designs poses an important challenge: if work does not come directly from a person’s mind, can or should it be protected by intellectual property law?
In most cases, works generated by artificial intelligence do not arise completely autonomously, but rather from human instructions or “prompts” that guide the system on the content, style, or purpose of the creation. In other words, behind each result there is an intellectual and decision-making intervention by the user, who formulates the instructions, selects the parameters, and evaluates the results obtained. From this perspective, it could be argued that the creative factor remains human, since artificial intelligence acts as an advanced tool that performs a task under the direction or supervision of a person.
However, the debate persists as to what extent human participation is sufficient to recognize the authorship or ownership of the rights to a work generated by AI, especially when the user’s contribution is limited to general instructions and the system produces an original result without further intervention. This dilemma has become one of the main challenges of contemporary intellectual property law.
In the legal field, there are currently three main positions on this challenge:
- Only humans can be recognized as authors, so works generated entirely by AI would not be protected.
- The rights must fall to the user or programmer who made the intellectual or creative effort behind the result.
- AI-assisted co-authorship must be recognized, distinguishing the human contribution within the creation process.
The fundamental issue, and the almost obligatory question raised by the use of artificial intelligence by humans, is: Who is the author? Is it the user who generated the instructions for the artificial intelligence or the creator of AI?
There are numerous cases and examples that debate the above question. One of them is the case of the “New Rembrandt,” a painting that was generated by computer and then printed in 3D. The process of creating this work took 18 months, during which a specialized facial recognition algorithm analyzed 346 paintings by Rembrandt and, as a result, brought this work to life, as if it had been painted by the famous Dutch painter.
Another relevant case, which was the subject of controversy due to the use of AI, occurred in 2023, when members of the famous British rock band The Beatles, Paul McCartney and Ringo Starr, led a project in which an AI tool was used to finish a song by the legendary band, “Now and Then.” The song was produced from a “vocal demo” by the late artist John Lennon. The tool, which used artificial intelligence, isolated and cleaned up John Lennon’s original voice, allowing this work, unfinished since the 1970s, to be completed. Although this process was authorized by the song’s rights holders, this case brought to the forefront the ethical and legal limits of using artificial intelligence in the creation of musical works, especially given the particularity that, in this example, the voice of a deceased artist was used. It is worth noting that this song won a Grammy in 2025 in the category of Best Rock Performance.
This raises serious challenges that must be addressed: Is it ethical and legal to use the voices of deceased artists through the use of AI tools? Could unfinished works be legally completed with the use of artificial intelligence and be subject to copyright?
A curious case that sparked further debate was that of “Théâtre d’Opéra Spatial.” In 2022, this work, created using a program called Midjourney by artist Jason Allen, won first prize at the Colorado State Fair in the digital art category.
The interesting part here is that Allen did devote a lot of time to the creative process, which resulted in his work winning the contest. Allen spent at least 80 hours on the process, entering hundreds of prompts (according to sources, more than 900 versions), then selecting the best ones and retouching them using his Photoshop skills. He then used another program called Gigapixel to print them on canvas. He won first place and a prize of $300. The judges did not know that the work had been generated by AI, but they stated (to spark even more controversy) that even with that information, they would have awarded it for its artistic quality. Finally, Allen attempted to register his work, but the copyright office rejected his application on the grounds that the work lacked significant human authorship.
The question here is: is a painting that has been created partly by a machine and partly by a human being art? Did it compete on equal terms with artists who did not use this technological “advantage”?
The debate will undoubtedly remain open to multiple criteria. While for some, the use of AI does not replace human creativity, since this is manifested in the ability to give precise and key instructions to a technological tool, instructions without which there would be no result, such as Allen’s work or the viral song that used the synthesized voices of Bad Bunny and other artists. For others, the mere fact of using tools such as AI completely denatures the result of any creative work, since a machine cannot be the author or co-author of any creation worthy of being considered art.
It is almost inevitable to ask: should works created with the assistance or use of artificial intelligence be regulated, rather than completely excluded from copyright protection?
A viable alternative would be to differentiate between works generated entirely by humans, without external intervention or support, and those that are the result of collaboration between humans and machines. This separation would allow human intervention to be recognized as a creative element, without ignoring the role of technology, which is increasingly present in our daily lives. This would be a step forward in building a regulatory framework that does not stifle innovation, but also does not undermine human authorship. The debate is open; sooner rather than later, crucial decisions will have to be made that will undoubtedly mark a turning point in intellectual property.