By Julius Melnitzer | April 7, 2026

AI prompts may seem like new territory for the law, but in the end the very old principles that define originality work just fine — Vincent Bergeron

For all the growing ubiquity of artificial intelligence in our society, its relationship to the law is still nascent. Although AI is now deeply embedded in legal work, existing legal frameworks have struggled to keep up with its rapid growth.

Given the struggle involved in adapting traditional legal doctrine to autonomous systems, the default remedial position might instinctively be that the law can deal with emerging issues satisfactorily only by adopting substantive changes to traditional principles.

The law going forward

But that may not be the case when courts come to consider whether AI prompts are copyright protected.

“In Canada at least, where the test for originality demands only that the work evidences judgment and skill that involve non-trivial intellectual effort—artistic creativity, in the sense of novelty or uniqueness, is not a requirement—I’m not at all sure we need to make a change in the legal principles that govern copyright protection for AI prompts since existing principles can handle it,” says Vincent Bergeron, a principal in the Montreal and Quebec City offices of ROBIC, a member of the IPH network. “But that might not apply to other jurisdictions with different standards.”

At least part of the reason why wholesale change may be unnecessary is because the common law, which has frequently proven it has enough flexibility to adapt to technological change, defines originality in Canada.

“It’s not like there’s a longstanding statutory definition of originality,” Bergeron says. “In that case, it would be more likely that change was necessary.”

No general rule

As Bergeron sees it, AI prompts are just a new tool for creating original works.

“In that sense, they’re like digital cameras, but in a different medium. AI prompts may seem like new territory for the law, but in the end the very old principles that define originality work just fine.”

And under those principles, there is no general rule as to whether AI prompts are or are not copyright protected.

“You always have to go back to the prompt itself because prompts appear on a very large spectrum,” Bergeron says. “Some will turn out to be purely functional and therefore lack originality. At the other end of the spectrum, prompts that are fleshed out like a poem, are hundreds of words long, or use creative language could well have sufficient originality to qualify for copyright protection.”

The key question is whether the prompt demonstrates intellectual effort composed of judgement and skill.

“A significant portion of prompts in practice do not because they tend to be mere lists of functional requirements,” Bergeron says. “But certainly, some prompts will demonstrate the degree of intellectual effort required to attract copyright.”

What about the output?

With perhaps only one exception (South Africa), most courts worldwide have ruled that authors must be human. The obstacle to affording copyright protection to prompt output, then, is the argument that AI, not the human who keyed in the prompt, is the author of the work.

“The key question in determining whether output is protected is whether the prompt rises to the level of making the human the author of the output,” Bergeron says.

What’s clear is that for prompts to rise to this level, the human’s contribution must determine the expressive elements of the final output.

“It’s not enough that the output was created at a human’s instruction, or that it was the human’s idea or goal,” Bergeron says. “The human’s input must cross the line from ‘instruction’ to ‘authorship’.”

Examples of when that might occur are when the prompt contains original expression that appears in the output; when the prompt details expressive choices, not just ideas or goals; or the human iteratively reshapes the output with edits and rejections.

“It’s analogous to a photograph where the camera captures the image, but the photographer determines the expression,” Bergeron says.

The Chinese judgement

Jurisprudence on whether prompts that instruct AI systems are original works or not has been scant to date. But a Chinese decision in Chengdu Cultural Communication Co. Ltd v Information Technology (Shanghai) Co. . Ltd. 2025) Hu 01 01 Min Chu No. 1 4775 (November 6. 2025) has emerged that may provide early guidance as to how courts might approach the cases.

The case arose when the plaintiff submitted six set of prompts to Midjourney, a generative AI system that creates images from text prompts. The prompts described the desired images and specified style, subject, scientific content, texture, layout, and background.

Midjourney generated the images and made the prompts public. The defendant used the prompts to generate similar images on Midjourney. The plaintiff claimed copyright infringement.

The plaintiff argued that the prompts were:

Forms of expression similar to film scripts and stage designs;
Original under Chinese law as their selection and arrangement demonstrated sufficient intellectual effort;
Original expression as they went beyond functional language; and
Creative, rather than search-based prompts, whose natural language differentiated them from a set of instructions or computer software code.

The defendant countered that:

The prompts were not literary works but a combination of professional terms or proper nouns in the public domain that lacked personalized expression;
Although writing the prompts may have been part of the creative process, the prompts did not in themselves amount to a creative result;
Selecting prompts was not a creative act;
The prompts constituted methods, which copyright did not protect; and
The prompts were instructions that merely conveyed ideas, which also did not attract copyright.

The court ruled that the prompts did not attract copyright protection as they:

Fell short of originality requirements because they represented standard or conventional artistic styles that amounted to nothing more than “stock devices”;
Were essentially instructions or descriptions given to the AI to generate the images;
Lacked the necessary depth of expression as they were “merely combinations of a few phrases” that did not have a “complete linguistic structure”;
Did not provide a “deeper interpretation or assign special meaning” to the images, nor did they “demonstrate the necessary artistic beauty”; and
Did not “demonstrate creative intellectual input”.

But the court did allow that certain AI prompts might be copyright protected. The determining factor was the degree of creative intellectual input: “If the prompt is the result of purposeful conceptualization and semantic design and can present a unique aesthetic orientation or creative expression, it can be considered as creative intellectual input,” the court stated.

The extent to which other national courts will apply the Chinese court’s reasoning, especially in the context of diverse copyright regimes, remains to be seen.

Julius Melnitzer is a Toronto-based writer who focuses on law, legal affairs, and the business of law. Follow him on LegalWriter.net or email him at julius@legalwriter.net.