[Guest Post] The IP protection of AI output

[Marcel Pemsel]

[Guest Post] The IP protection of AI output

Marcel Pemsel Friday, January 16, 2026 - AI, copyright, Daan Breuking, Deity Shoes, designs, Guest post, Mio konektra

The IPKat has received and is pleased to host this guest contribution from Katfriend Daan Breuking (Holla legal & tax), who discusses the protection of AI generated content with a particular focus on design law.

The IP protection of AI output

by Daan Breuking

In the summer of 2024, my colleague Kim de Bonth and I wrote an article (in Dutch) discussing the protection of AI-generated output where no human creative input was involved. We concluded that such output would not qualify for copyright protection as it lacks human creativity. This was a hot topic at the time – and remains one today. While we excluded copyright protection, we argued that design law does not require human involvement or creativity to provide protection. This suggests that AI-generated output could still benefit from design protection.

To test this theory in practice, we filed an EU design application for a fully AI-generated plate featuring Lady Justice:

In the description of the application, we noted: 

"This plate was created entirely through Artificial Intelligence (AI), specifically using Midjourney. The plate was generated by entering the prompt ‘a picture of a plate with legal images on it’ into Midjourney. No human modification or editing was involved." 

This design was accepted by the EUIPO and remains registered as EU Design 015064798-0001 to this day.

Recently, our assumption that AI-generated output is not eligible for copyright protection but can be protected under design law seems to have been confirmed by two important rulings from the Court of Justice of the European Union (CJEU).

Mio and Konektra cases

In the joined cases of Mio (C-580/23) and Konektra (C-795/23) (IPKat here), the CJEU examined the criteria for determining whether an object of applied art could be protected by copyright. The Court reiterated that the originality requirement for copyright protection involves the creator’s personal choices and creative input, which must be expressed in the object itself. The Court clarified that when an object’s creation is primarily influenced by technical constraints, rules, or limitations that leave little room for creative freedom, it cannot be considered original enough for copyright protection. This is particularly relevant in the context of AI-generated designs. If an object or design is created by AI without human input, it lacks the necessary creative effort and personal choices to meet the originality requirement for copyright protection.

Moreover, the Court highlighted that the presence of free and creative choices should be assessed based on the object itself, rather than the creator’s subjective intentions or external factors. While inspiration and existing forms can be considered, they alone cannot establish the required level of creativity for copyright protection.

Deity Shoes case

In contrast, in the Deity Shoes case (C-323/24; IPKat here), the CJEU confirmed that no creative effort from the designer is required as long as the design is new and has individual character. The Court specifically noted that for unregistered designs, the same rules apply as for registered designs: they can still be protected under EU design law as long as they meet the requirements of novelty and individual character. This means that any AI-generated output can potentially receive design protection, even without formal registration.

The Deity Shoes case illustrates the key difference between design law and copyright law when it comes to creativity. The case, which concerns the footwear industry, explores whether a design can be considered novel and have individual character despite being influenced by pre-existing elements in a catalog offered by a supplier. The Court emphasized that even if designs are based on pre-established components or are modified using available catalog parts, they can still qualify for protection.

The key takeaway from the Deity Shoes ruling is that, under design law, protection hinges on novelty and individual character, rather than human creativity. This means that designs generated with minimal human input – such as those heavily influenced by catalog elements – can still be eligible for protection under EU design law.

The Deity Shoes ruling also highlights that design protection focuses on the final product and its visual impact, rather than the designer’s creative process. A design created with limited originality or with the aid of templates can still be protected if it meets the criteria for novelty and individual character. This demonstrates how design law can offer protection, even in industries where innovation may be incremental rather than groundbreaking.

Designer and attribution under the EUDR

A related question is whether EU design law presupposes a human designer. The EU Design Regulation (‘EUDR’) does not require subjective creative authorship. The term “designer” is not defined anywhere in the EUDR, which means that no requirements regarding the designer can be derived from it.

Although Article 7(2)(a) and 7(3) EUDR mention the designer, Article 7 EUDR solely governs the moment and circumstances in which a design is deemed to have been made available to the public. The provision links disclosure to acts of the designer or the designer’s successor in title, but it does not address how the design came into being or whether human creative involvement was present. Its role is simply to determine which disclosures count when assessing novelty and individual character.

Article 14 EUDR also refers to the designer, but it only concerns the acquisition of rights and the allocation of ownership. It allocates the Community design right to the designer or the designer’s successor in title for enforcement and commercial exploitation, without imposing any requirement regarding the nature or quality of the design process.

In Article 14(2) EUDR the term persons appears for the first time in the EUDR. One might argue that this suggests human persons, but in my view that interpretation does not hold. The term persons refers to legal subjects (natural or legal persons) capable of holding and enforcing rights, not to biological humans with creative agency. This is confirmed by Article 56 EUDR, which governs appeals and explicitly frames persons in procedural and titular terms: only parties to the proceedings may appeal, which necessarily refers to legal subjects capable of acting in law. It does not imply that the design process must involve human creative authorship; it merely ensures that the resulting rights vest in an entity capable of acting in law.

On this basis, I take the view that the EUDR does not imply that the designer must be human. Such a requirement cannot, in my view, be derived from the EUDR.

The prompt user as designer

Even if a human designer were required, this would not change the assessment for AI output. AI output is at present generated by human users who formulate and input a prompt, after which the system produces the visual output without further interference. Setting aside that the EUDR does not require subjective creative authorship, there is still a reasonable argument that a human maker exists in the legal sense, namely the person who determines the prompt and thereby initiates the generation of the design that is subsequently made available to the public or filed. That person then functions as the designer for the purposes of title and attribution.

This aligns with Deity Shoes, which confirms that creative effort is not a condition for protection. It also aligns with practice: our AI generated plate was filed with an explicit statement that no human editing was involved and was accepted by the EUIPO without discussion.

Unregistered EU Designs: AI output can still be protected

A particularly important point is the fact that design protection in the EU does not necessarily require formal registration (see Art. 11 EUDR). The CJEU’s ruling in Deity Shoes explicitly confirms that the same standards apply to unregistered designs: they can still be protected under EU law, provided they meet the requirements of novelty and individual character.

This means that any AI-generated output could potentially receive design protection, even without formal registration. It provides a legal foundation for creators of AI-generated designs to take action against parties who copy their work.

Unregistered designs, like registered designs, need only to be new, have individual character and have been made available to the public to be protected. This significantly broadens the scope of protection for AI-generated designs beyond those that have been formally registered, making design law a powerful tool for protecting a wide range of creative outputs, including those generated by AI.

Conclusion

There is a widely held belief that AI-generated output cannot be protected, mainly due to the absence of human creativity, which leads many to assume such works are unprotected. However, this is not the case under design law. In my view, AI-generated works, even if unedited, are eligible for design protection as long as they meet the requirements for novelty and individual character.

Looking ahead, it is clear that AI-generated output will continue to raise complex legal questions as technology advances. Future cases may challenge the boundaries of design law, and new considerations may arise regarding the rights of creators versus those of AI systems. As AI plays an increasingly significant role in creative industries, legal frameworks will need to adapt to balance innovation with protection, ensuring that both human creators and AI-driven designs are appropriately safeguarded.