1. Introduction: The Emergence of Prompt Engineering in the AI Age
The breathtaking pace of generative AI's evolution has dramatically transformed the way we produce, engage with, and consume content. The heart of this revolution is a new kind of creative and practical authorship—prompt engineering—where one crafts textual or coded inputs to direct the responses of dominant AI models like OpenAI's ChatGPT, DALL·E, or Google's Gemini. As such prompts grow more advanced, their creativity value and economic worth grow greater recognition across sectors. Legal research, digital marketing, and software engineering are no longer alone in seeing prompt engineering not merely as an engineering problem but as increasingly becoming a strategic asset in the midst of its ascension. In the midst of this development, one critical legal issue has arisen: Are AI prompts copyright protectable?
2. From Simple Instructions to Artistic Blueprints
At first glance, the concept might seem hyperbolic. A prompt might look like little more than a generic directive—"Write a poem about the ocean" or "Translate this paragraph into French." But as AI systems become more complex and responsive, so do the prompts that activate them. Sophisticated prompt engineering usually entails considerable creative effort, domain knowledge, and iterative polish. For example, an instruction such as "Write a 12-line Shakespearean sonnet, employing metaphors related to digital technology to characterize the sea, concluding with a rhyming couplet mentioning climate change" is not an instruction in the technical sense—it is a creative template designed to bring about a specific stylistic and thematic product. In these instances, instructions presumably move beyond utility and become more like authored texts.
3. The Legal Architecture: Originality and Fixation
The copyright law protecting such developments is yet to catch up with the developments. In current law, under the U.S. Copyright Act and its equivalent in other countries, two principal requirements must be satisfied for a work to enjoy protection: originality and fixation. Originality means that the work should be autonomously created and reflect some minimal level of creativity. Fixation mandates that the work be recorded in a physical medium—written, recorded, or otherwise memorialized beyond a fleeting form.
3.1 When Prompts Pass the Copyrightability Threshold
Applying this to AI prompts demonstrates a continuum. Generic, straightforward prompts clearly don't meet the threshold of copyrightability based on a number of well-settled doctrines in copyright law. The dichotomy of idea and expression excludes protection of the idea behind a prompt—only the distinctive expression of that idea may be protected. The merger doctrine believes that when an idea has only a very limited number of ways in which it can be stated, the statement cannot be copyrighted because it essentially fuses with the idea. The scènes à faire doctrine similarly keeps out those which are common or usual in the context in which they appear—like resume prompts with standard format or generic question-answer forms. Under such regulations, routine, formulaic, or functionally dictated prompts will unlikely be protected. Yet, intricate prompts that demonstrate creative expression, originality, and an innovative composition of instructions will venture into the protectable range.[1]
3.2 Prompt Engineering as a New Model of Authorship
This distinction is not merely theoretical. It has practical implications for industries and people whose livelihoods are starting to ride on the value created by quick engineering. Legal commentators have analogized prompts to software code, legal briefs, screen directions, or choreography—all of which have copyright protection when they incorporate original expression. For instance, in Whelan Associates, Inc. v. Jaslow Dental Laboratory[2], an American court identified the organization and structure of a computer program as copyrightable. Where prompt sequences comprise similarly expressive structures—particularly those implemented in professional or artistic applications of AI—they too might fall under the jurisdiction of copyrightable subject matter.[3]
4. The Argument for Copyright Protection
Advocates for protection of copyright for prompts say that the existing IP regime should change to accept this new mode of authorship. For one, recognition of prompts as copyrightable would recognize the human creativity built into their creation. Most prompts represent expert knowledge and creativity, developed through hours of experimentation and refinement. No matter whether it is a legal scholar crafting a prompt to deconstruct Supreme Court jurisprudence, a fiction writer creating interactive stories, or a marketing strategists creating brand-specific material, these people are doing valuable intellectual work worthy of protection.
Second, copyright can be a strong motivator. Just as authors, programmers, and designers are motivated to produce through the protection of the law, generous engineers might be more inclined to share and license their best work if they are guaranteed control and attribution. This could spur innovation, facilitate new business models, and promote the development of prompt marketplaces in which top-quality prompt designs are bought, sold, or jointly created.
Third, the value of prompts is increasing economically. As demand for content created by AI picks up commercially, the inputs that produce worthy outputs—the prompts—are worth something themselves. A well-crafted prompt can produce dozens of effective blog entries, social media posts, or legal briefs. Guarding prompts prevents misusing and makes it possible to monetize prompt knowledge.
5. Challenges and Concerns: Risks of Overreach and Enforcement
However, granting copyright protection to prompts is not without troubling implications. Several objections are raised by critics, among them being the functional character of prompts. By its nature, copyright law does not protect ideas, methods, procedures, or systems. Most prompts are utilitarian—they are directives designed to accomplish something. Permitting protection for such mechanisms threatens to blur function with expression, a line copyright law has gone out of its way to preserve.
Additionally, there is an actual threat of overreaching and monopolization. Should excessive protection be afforded to prompts, it may discourage collaboration and experimentation. Consider a case where one asserts copyright over the concept of prompting an AI to write haikus on climate change or product reviews in verse. This might result in "prompt trolling," in which simple, common prompts are trapped behind limiting licensing or legal threats to free exploration.[4]
Enforcement is also practically challenging. Prompts tend to be transient, changed regularly, and placed in proprietary systems. Establishing ownership, access, and copying may be impractical in reality, particularly in the digital sphere where prompts are iterated and shared internally. There is also the issue of how prompt copyright would interact with the issue of ownership of AI-generated output, a contentious area of law in jurisdictions. If the prompt is copyrightable, does that give ownership or control over the output of the AI to the author of the prompt? Current laws are still trying to decide if works generated by AI, with no adequate human authorship, can be protected at all.
6. A Worldwide Perspective: How Jurisdictions Are Responding
Various jurisdictions answer these questions in varying manners. The Copyright Office in the United States has made it clear that content created through AI with no significant human contribution is not eligible for copyright, but that human contributions (such as prompts) can be if they fulfill the standards demanded. Under the Indian Copyright Act, 1957[5], computer programs and compilations are defined as literary works. Prompts—if original and fixed—could theoretically be termed literary works. Indian courts adhere to the "skill and judgment" test of originality, and while this is arguably wide enough to cover advanced prompt engineering, it is unclear that they would. Under European Union law, copyright is also anchored in human authorship, although preparatory materials (e.g., software design patterns) can qualify for protection if they contain creative expression.[6]
6.1 Toward a Tiered or Sui Generis Solution
To address the uncertainty, some scholars have put forth a tiered system of triggering protection. Generic or functional triggers would receive no protection under this system, moderately innovative triggers could possibly receive limited recognition, and extremely original triggers—those with explicit expressive decisions and artistic ordering—could be afforded full copyright protection. This strategy would meet the interests of independent creators and the public domain, leaving room for innovation while protecting true contributions.[7]
7. Alternative IP Tools: Trade Secrets and Contracts
Where copyright law is inadequate, other types of intellectual property can provide partial protection. Trade secret law can be used to protect confidential prompts if sufficient steps are taken to maintain them as a trade secret, for example, through non-disclosure agreements. Contracts and licenses may also control how prompts are distributed, utilized, or commercialized. Some developers are even inserting prompts into proprietary APIs, so they are hard to extract or reverse engineer. Patent law, which is less relevant, may provide protection where prompts are integrated into comprehensive technical systems that are novel and non-obvious.[8]
In order to bring coherence to this fast-developing area, institutions and policymakers might be required to create specialized guidelines or sui generis protections. These might take the lead from database rights within the EU, which protect compilations of information ineligible under traditional copyright, or create registration regimes where creators can record and claim authorship over their prompts. Transparency, education, and ethical behavior within AI communities are also necessary—prompt attribution, sharing protocols, and communal norms can do much to acknowledge creative labour.[9]
8. Conclusion: IP Transformed for the Era of Human-AI Collaboration
In summary, the issue of whether AI prompts are entitled to copyright protection lies at the confluence of law, technology, and creativity. Although not every prompt is entitled to protection, it is ever more evident that there are some prompts that do carry the characteristics of original, expressive work. While AI continues to redefine content creation, prompt engineering represents a new model of authorship—one that does not necessarily conform to classical modes, but one which is nonetheless a reflection of human creativity, talent, and intention.[10]
In order to safeguard this new frontier in a responsible way, there is a need for a balanced and context-aware legal structure that is not overly permissive but does recognize the actual value contained in sophisticated prompt design. Such a structure would protect creators and innovators but also guarantee that the ethos of open, collaborative technological innovation continues to thrive under the umbrella of artificial intelligence.
REFERENCES
Whelan Associates Inc. v. Jaslow Dental Laboratory, 797 F.2d 1222 (3rd Cir. 1986).
Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1.
Copyright Act, 1957, § 2(o), § 13.
U.S. Copyright Office, “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence”, available at: https://www.copyright.gov/ai/ (last visited on 25 June 2025).
European Commission, “Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs”, OJ L 111, 05.05.2009, p. 16–22.
Jane C. Ginsburg, “The Concept of Authorship in Comparative Copyright Law”, 52 DePaul Law Review 1063 (2003).
Pamela Samuelson, “Allocating Ownership Rights in Computer-Generated Works”, 47 University of Pittsburgh Law Review 1185 (1986).
Andres Guadamuz, “Do AI Outputs Belong in the Public Domain?”, WIPO Magazine, available at: https://www.wipo.int/wipo_magazine/en/2021/01/article_0006.html (last visited on 25 June 2025).
Tanya Aplin and Jennifer Davis, Intellectual Property Law: Text, Cases and Materials, 2nd edn., Oxford University Press, Oxford, 2013, p. 243.
Mark A. Lemley, “IP in a World Without Scarcity”, 90 New York University Law Review 460 (2015).
Siva Vaidhyanathan, The Googlization of Everything: (And Why We Should Worry), University of California Press, Berkeley, 2011, p. 95.
[1] eastern book company v. d.b. modak, (2008) 1 scc 1
[2] Whelan Associates Inc. v. Jaslow Dental Laboratory, 797 F.2d 1222 (3rd Cir. 1986).
[3] Jane C. Ginsburg, “The Concept of Authorship in Comparative Copyright Law”, 52 DePaul Law Review 1063 (2003).
[4] Siva Vaidhyanathan, The Googlization of Everything: (And Why We Should Worry), University of California Press, Berkeley, 2011, p. 95.
[5] Copyright Act, 1957, § 2(o), § 13.
[6] U.S. Copyright Office, “Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence”, available at: https://www.copyright.gov/ai/ (last visited on 25 June 2025).
[7] Andres Guadamuz, “Do AI Outputs Belong in the Public Domain?”, WIPO Magazine, available at: https://www.wipo.int/wipo_magazine/en/2021/01/article_0006.html (last visited on 25 June 2025).
[8] Tanya Aplin and Jennifer Davis, Intellectual Property Law: Text, Cases and Materials, 2nd edn., Oxford University Press, Oxford, 2013, p. 243.
[9] European Commission, “Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs”, OJ L 111, 05.05.2009, p. 16–22.
[10] Pamela Samuelson, “Allocating Ownership Rights in Computer-Generated Works”, 47 University of Pittsburgh Law Review 1185 (1986).