Weekly China Brand Protection News

April 25, 2025

Content primarily generated automatically by AI drawing software does not constitute a work and does not infringe copyright

Plaintiff Feng sued defendants Zhangjiaggang Dongshan Cultural Communication Co., Ltd. (“Dongshan”), Zhu, and others for copyright infringement and unfair competition. Feng claimed to have created the “Fantasy Wings Transparent Art Chair” series of artistic works (referred to as the “butterfly chair images”) using AI software such as Midjourney and publicly posted them on Xiaohongshu. Defendant Zhu, after viewing Feng’s work and failing to establish cooperation with Feng, allegedly copied the work and commissioned Zhangjiaggang Shenzhou Machinery Co., Ltd. (“Shenzhou Company”) and Zhangjiaggang Kuashi Plastic Products Co., Ltd. (“Kuashi Company”) to produce it. Zhu and Dongshan Company then sold it online. Feng believed that the four defendants’ actions infringed on its copyright and seriously affected the production and sales of its work. The first-instance court, Zhangjiagang Court in Jiangsu, ruled that the images in question were primarily automatically generated by artificial intelligence drawing software and cannot be recognized as copyrightable works. The alleged actions did not constitute infringement or unfair competition, so the court dismissed Feng’s lawsuit.

Feng disagreed with the first-instance judgment and appealed to the Suzhou Intermediate Court, but failed to pay the appeal fee within the specified time period. The Suzhou Intermediate Court recently issued a ruling that the first-instance judgment is now effective.

The first-instance court found the following on key issues:

1. The butterfly chair images claimed by Feng do not constitute works protected under the copyright law.

When posting the butterfly chair images on the personal Xiaohongshu account, Feng indicated that the products were all AI-designed and shared the prompts (words used to generate the images). Additionally, Feng stated in court that the images were created using Midjourney and Xingtu software. Therefore, the butterfly chair images are AI generated contents. Content primarily automatically generated by AI drawing software should not be considered as work. However, if a user employs AI drawing software as a tool while demonstrating their original intellectual contribution, even AI-generated content should be protected by copyright as a work. Therefore, the key to determining whether the images constitute as a work in this case depends on whether they are the user’s original intellectual creation rather than primarily automatically generated by AI.

To determine whether text-to-image generation qualifies as original intellectual creation, one can examine the original records of the creative process to assess whether the user made aesthetic choices and personalized judgments. The user should provide original records of the creative process to prove that they adjusted, selected, and polished the initially generated images by adding prompts and modifying parameters, making personalized choices and substantial contributions to layout, proportion, perspective, composition elements, colors, or lines. In this case, Feng claimed to want to create images of butterfly-shaped chairs with a jelly-like feel and glass-like transparency, entering corresponding prompts in Midjourney and setting parameters, but failed to provide original records such as flowcharts of the creation process. Without original records to support the creative process, the choices and modifications claimed lack evidence, making it difficult to demonstrate intellectual input. Moreover, Feng admitted that due to the randomness and uncertainty of Midjourney’s image generation, it could no longer reproduce the exact generation process of the images in question. Therefore, the court found it difficult to determine that Feng made personalized choices and modifications reflecting originality when using Midjourney and Xingtu app to generate the butterfly chair series images. Thus, the images claimed by Feng fail to demonstrate original intellectual input throughout the entire process from initial conception to final selection, do not meet the requirements for constituting a work, and cannot be recognized as a work.

2. The alleged actions do not constitute infringement or unfair competition.

Given that Feng’s butterfly chair images do not constitute works, the claim of copyright infringement against the defendants is not valid. Regarding defendant Zhu’s actions of using text-to-image software for design, production, and sales after failing to establish cooperation and referring to prompts shared by Feng, the court found the following:

First, the defendants did not directly copy and use Feng’s butterfly chair images. From the source of the allegedly infringing products, online promotional images, and packaging images, defendant Zhu’s design idea was inspired by the butterfly series chair images posted by Feng on its Xiaohongshu account, and the defendant referred to the publicly shared prompts when using Midjourney. However, copyright protects specific expressions rather than abstract ideas. The prompts input relative to content generated by AI are ideas, not expressions protected by copyright law. Simple prompts themselves are not works, and referencing them does not constitute infringement. The prompts shared by Feng in the original post on Xiaohongshu were relatively simple combinations lacking differentiation in the description of picture elements and layout composition, and the content and elements pointed to by Feng’s prompts had already been presented by others previously. Furthermore, text-to-image results are random and uncertain, and Feng also acknowledged that they could no longer reproduce the exact images in question. During the trial, Feng also admitted to publicly sharing the relevant prompts to facilitate communication and learning. Therefore, defendant Zhu’s action of referring to the initial prompts actively shared by Feng and then making image edits and adjustments should not be deemed infringement.

Second, although the butterfly chair images claimed by Feng and the allegedly infringing online promotional images and packaging images all have basic structure of four symmetrical butterfly wings combined with a square seat, there are significant visual differences in their specific expressions. Additionally, based on practicality and feasibility considerations, the overall styles of both parties are obviously different, showing that the defendant did not simply copy from two-dimensional to three-dimensional but conducted further design to adapt to industrial production, which does not constitute substantial similarity.

Finally, Feng had not invested in actual production or sales of the butterfly chair images, and the allegedly infringing products are not substantially similar to the images claimed for protection. Feng also had no evidence to prove that the defendants’ production and sales of the allegedly infringing products would likely cause the public to mistakenly believe that their products originated from Feng or had a specific connection with the plaintiff. Therefore, the defendants’ production and sales of the allegedly infringing products do not constitute unfair competition.

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