Weighing up AI prompts with copyright law

The wave of AI technology is re-engineering the creative workflow, propelling creators from downstream execution towards upstream ideation. At the heart of this shift lies the “prompt”, the vital interface connecting human creativity with machine-generated content. However, its legal standing remains deeply contested: Is it simply an unprotectable idea, or an “expression” entitled to copyright protection?

Taking the first copyright infringement case involving AI prompts as its starting point, this article probes a critical question within the wider AI-driven creative shift: Where does the prompt fall under the idea-expression dichotomy? The analysis aims to provide a jurisprudential reference point for establishing a fair creative order amid rapid technological change.

Case summary

The claimant, a commercial art studio, devised six sets of prompts in 2022 designed to generate images via the Midjourney AI image generator. These prompts combined multiple components, including artistic styles such as “Art Nouveau”, subject matter like “Aquamarines Stygiomedusa gigantea”, and textural details described as “complex and delicate jellyfish texture”. The resulting AI-generated works were then published on Xiaohongshu and other platforms.

The claimant contended that the defendants had exploited highly similar artworks – published on Xiaohongshu and in a book – that were generated on Midjourney directly from the claimant’s prompts. Asserting that the prompts constituted literary works, the claimant alleged infringement of its reproduction, distribution, communication to the public and attribution rights, and sought an injunction and compensation for reasonable expenses.

The defendants argued that the prompts were not copyright-protected works, but simple word combinations – either unprotectable ideas or limited expression. They also contended their use complied with Midjourney’s terms of service and constituted fair dealing for private study.

The ruling hinged on the legal classification of prompts. The Huangpu District People’s Court of Shanghai held that the prompts in question were instructions keyed into an AI system.

Formally, they were bare keyword lists without grammatical logic or narrative layering; substantively, they functioned as abstract descriptions and conceptions of visual elements remaining at the level of ideas, lacking original intellectual expression. The court thus ruled the prompts uncopyrightable, concluded that the claimant had no copyright in them, and dismissed the claim in its entirety.

Copyright status

Copyright protects original expression. A work is original when it is the author’s own intellectual creation, embodying their personal choices and creative expression.

Firstly, writing prompts is not an act of authorship under copyright law. Traditional creation, such as painting and writing, gives expression to ideas, directly transforming them into protected form; AI severs this direct link. Prompts merely translate abstract ideas into machine instructions – they are a means, not the creative end.

Authorship is inherently social, a conduit for human communication, and copyright safeguards this interpersonal vehicle of expression. Prompt writing, by contrast, is human-machine interaction to command an output (such as generating images), lacking any social dimension. It resembles typing keywords into a search engine: the keywords are not themselves works.

Language built to guide an AI is a functional tool, converting intent into parameters, not a creative expression. Even a pre-existing poem, when used as a prompt, serves solely to instruct the machine, not to communicate as literature.

Prompts themselves generally lack the creative expression born of personal choice. Originality depends not on length, complexity or time spent, but on whether the design and refinement of the prompt display substantial intellectual creativity and individualised expression.

Non-creative labour – however intensive or repetitive – cannot generate originality. The richness of content is not the same as creative expression. A prompt is, in essence, a compound of keywords such as artistic style, subject and textures. The AI does not comprehend grammar or structure; it tokenises the input and cross-references its training data.

The prompt’s core function is to set parameters, not to express creatively. Whether a text used as a prompt is protected depends first on its own originality as a written expression. An independent literary work – a poem, for instance – may be protected, but that is unrelated to its role as a prompt. A prompt does not become a protected expression merely because it guides an AI to produce an image.

Finally, AI prompts are “ideas” rather than “expression”. Ideas are abstract and unprotectable; only concrete expression attracts legal protection. As directives for generating content, prompts are the crystallisation of ideas – tools of human-machine interaction – and do not constitute original expression under copyright law. They are therefore not works.

Excluding AI prompts from the scope of copyrightable works does not deny innovation; it reaffirms copyright’s core mission of protecting original human expression. As technology makes the leap from idea to expression ever more seamless, the distinction between a front-end functional prompt and the final, socially situated expression – which reveals the depth of human personality – becomes vital.

Maintaining this boundary prevents the monopolisation of creative ideas, preserves knowledge sharing and creative freedom, and keeps AI as a tool for expanding, not undermining, human creativity.

Zhang Yichao is a partner and Yan Boru is an associate at Ronly & Tenwen Partners