Can AI-generated product and other designs claim IP protection?

What's the issue?

• AI can be used to help design products of all sorts (from clothing to furniture), graphical user interfaces (GUIs), packaging, logos, surface decoration, and other works that can potentially benefit from unregistered and registered design protection. 

• As more businesses transition to generating aspects of designs using AI, an important question arises: do they actually own any IP rights in what's produced in the UK? 

• In short, the answer is that Registered Design protection is available where a design is generated purely by AI (ie where the design is computer-generated, without a human author). However, it is less clear whether the other types of design protection (or copyright) are potentially available where a design is AI-generated in circumstances where there is no human author. 

• In any event, the question might become redundant as it's likely that the government will ultimately abolish all forms of design/copyright protection (including Registered Design protection) for purely AI-generated designs. If that happens, it would mean that designs generated purely by AI would not be protected. This would mean that designers would have to ensure that there is a human designer if they want design/copyright to subsist in their designs (with AI being used more as a tool).

• Here, we consider these issues and the best ways to maximise the chances of IP rights subsisting in designs where AI is used as part of the design process. For those using AI to generate works potentially protectable by copyright, see our separate article on whether copyright subsists in such works. 

Is protection available for AI-generated designs?

The position is not clear-cut, except as regards Registered Designs, as discussed below.

• Registered Designs. Registered Designs protect the appearance of the whole or part of a product resulting from the features of, in particular, the lines, contours, colours, shape, texture and/or materials of the product itself and/ or its ornamentation. Designs of 2D and 3D products, as well as GUIs, surface decoration, packaging and logos can all be registered, provided they are new, have individual character and are not otherwise excluded from protection. Registration lasts for a maximum of 25 years and is relatively simple and inexpensive to obtain. Protection is expressly available for "computer-generated designs without a human author" (which would seem to cover wholly AI-generated designs with little/no human input). However, the government is consulting on abolishing this form of protection (more here). If that happens, only designs with a human designer would be registrable.

• Supplementary Unregistered Designs (SUDs). SUDs protect the same types of design as Registered Designs but arise automatically when the design is first disclosed to the public in the UK. However, they only subsist for 3 years and are only infringed where there is copying. The legislation is silent on whether SUD protection is available for wholly AI-generated designs, with the government's view being that it is not available (although it would be a matter of statutory interpretation if the issue ever came before a court and is arguable either way). This is potentially problematic as many businesses rely on SUDs to protect their designs, especially where those designs are short-lived (such as in the fashion industry). These are often also the industries that are using AI as part of the design process. Using a human designer is the only way to guarantee SUD protection for designs at present. 

• Copyright. While copyright protection is expressly available for "computer-generated works without a human author", there are some uncertainties around the availability of protection in practice and the government has consulted on abolishing it (as discussed in our copyright article). Since copyright only subsists in a small number of designs anyway (mainly where the design is deemed to be a work of artistic craftsmanship, like the fabric design in the Response Clothing case), most won't be affected. 

• Unregistered Design Right (UDRs). UDRs protect the design of the shape or configuration (whether internal or external) of the whole or part of an article, provided that it is original and not otherwise excluded from protection. It therefore protects 3D elements only. UDR is not commonly relied upon by many businesses but sometimes subsists when SUD/registered design protection does not (eg for functional shapes). It lasts for 10 or 15 years and there are significant qualification requirements. While UDR protection is expressly available for "computer-generated designs without a human author", the issues are similar to that for copyright - there is some uncertainty as to whether protection is available in practice and the government is considering abolishing it (see the separate copyright article, which applies equally to UDR).

What does this mean for you?

Those using AI as part of the design process should consider the following:

• Registered design protection. Consideration should be given to applying for registered design protection, where possible, since it is the only right where protection is guaranteed (subject to the usual requirements) if AI is used as part of the design process. This is particularly so where strong IP protection is required eg for enforcement or exploitation purposes. 

• Functional designs. Where registered protection is not available, for example, the design is functional, then it will be necessary to rely on UDR (and hope that any wrinkles in the law are ironed out) or ensure that a human designer is used, with AI only being used as tool. Those who rely on UDR or copyright protection for their designs are referred to in our separate article on the issue.

• Abolishment. Bear in mind that Registered Design (and Copyright and UDR) protection for wholly AI-generated designs might be abolished by the government in the short to medium term. If that happens, protection will only be available/arise where there is a human designer/author, with AI only be using as a tool. Planning ahead for that likely position is sensible now.

• International protection. If protection is required for a particular design overseas, then it is best to ensure that a human designer/author is used (with AI only being used as a tool)  since most countries (eg in the EU) do not confer any type of design/copyright protection where there is no human designer/author.  

• Human designer/author. The question of whether there is a human designer/author is not a straight-forward one. Our separate copyright article should be consulted for a deeper consideration of the issues, including whether detailed, creative prompts would be enough to show that there is a human designer/author.

• Keep a detailed paper trail. Record how you created each design/work in the same way that you would record how any other original design/work was created. This means saving your prompt history, screenshotting your iterations and logging human contributions. This audit trail might one day prove critical in demonstrating design/copyright ownership and subsistence. This is particularly so as the burden of proving these matters is on the owner and going forward there might be a strong presumption that AI was used in the creative process.

• Exercise caution in communications. Avoid overstating publicly that designs/works are 'AI-generated'. This discretion will help to preserve perceived design/copyright ownership and value.

• Educate the business. Make sure that the business is aware of the risks and that the use of AI as part of the design process is thoroughly reviewed and escalated, including when changes to the process are made.

• Consider how your outside agencies use AI as part of the design process. You may need to change how your outside agencies use AI, depending on what they are designing. Remember that an agreement to assign design/copyright to you is worthless if no such rights exist.

• Watch for developments. It is possible that the government will address some of the uncertainties by amending relevant legislation. There might also be more information about the government's thinking when it publishes its response to the Consultation on the Designs Framework.

• Consider ownership of designs/copyright. Assuming registered design/copyright/UDR subsists in a particular AI-generated design, a further issue is who owns that right. The legislation provides that the author of a computer-generated work without a human author shall be "taken to be the person by whom the arrangements necessary for the creation of the work are undertaken". However, there is no guidance on who that person might be (usually the human prompter but possibly not if a less detailed prompt is used). Fortunately, the standard T&Cs of most GenAI platforms provide that the user (licensee) owns all IP rights in AI-generated outputs. Nonetheless, this should be checked on a case-by-case basis, including making sure that the appropriate type of licence is in place – see our article here. 

For more on the different types of design protection, see our Guide to Designs.