Abstract
Creative agencies, photographers, designers and other professionals are increasingly using artificial intelligence tools to create content for their clients. In contracts, however, the client may ask for something that appears simple: that the content created belongs to them and that no one else may use it.
When AI is involved, promising genuine “exclusivity” requires greater caution. Owning an output, being able to transfer it, and being able to guarantee that no one else will receive something identical or similar are, in fact, three legally distinct matters.
Is AI-generated content protected by copyright?
The first question to ask concerns the very nature of the content being delivered to the client.
Since 2025, Italian copyright law has expressly addressed the issue. Article 1 of Law No. 633/1941 now protects “creative works of human intellect”, specifying that they may also be protected when created with the assistance of artificial intelligence tools, provided that they are the result of the author’s intellectual work.
The presence of artificial intelligence in the creative process does not, therefore, automatically exclude copyright protection. At the same time, however, merely giving a prompt to a generative system is not enough to conclude that everything it produces is a protected work.
It is necessary to assess how decisive the human contribution actually was: the creative choices made, the construction and possible evolution of the instructions, the selection of results, their combination, subsequent modifications and, more generally, the control exercised over the final outcome. As we have already discussed in the article Who is the author of a work created with artificial intelligence?, what matters is determining whether AI merely assisted a creative process attributable to a person or, in practice, autonomously determined the result.
This principle is also consistent with the traditional approach of the Court of Justice of the European Union, which links copyright protection to the existence of an original creation capable of reflecting the author’s free and creative choices.
This leads to a first important distinction.
It is one thing to use AI as a tool within a human creative process; it is another to rely, substantially without any further creative contribution, on the result proposed by the machine.
In the first case, there may be a work protected by copyright. In the second, the possibility of claiming an exclusive right over the result becomes far less certain.
If the provider says the output is mine, can I grant it exclusively?
This is where one of the most common misunderstandings arises.
Many providers of generative systems regulate rights in outputs through their terms and conditions. OpenAI’s terms, for example, provide that, as between OpenAI and the user and to the extent permitted by applicable law, the user owns the output and is assigned any rights the provider may have in that result.
Such a provision may appear reassuring. But caution is required.
Saying that the provider assigns to the user any rights it may have in the output does not necessarily mean that the output is a work protected by copyright. As we have already noted in the article Can AI-generated images be used for commercial purposes? – Canella Camaiora, the ability to exploit an output commercially does not necessarily coincide with the existence of copyright in that same result.
Above all, it does not mean guaranteeing its uniqueness.
OpenAI’s own terms expressly warn that, given the nature of artificial intelligence services, outputs may not be unique and other users may receive similar content.
Other providers also adopt mechanisms for allocating rights in generated assets, while often specifying that such rights operate within the limits of applicable law and any rights that may belong to third parties.
The distinction is fundamental.
The agreement with the provider may establish that the provider will not assert certain rights in the output against us. It cannot, however, create through a simple contractual clause a copyright that the legal system does not recognize.
In other words, “this output is yours” does not necessarily mean “you hold an exclusive right in this output that can be enforced against anyone”.
What does it mean to promise “exclusivity” to the client?
The word “exclusivity”, in creative contracts, may conceal obligations of very different kinds.
Imagine that an agency uses generative tools to create images for an advertising campaign and the contract provides that the client will have the right to use them “exclusively”.
This promise may mean at least two things.
The first is that the agency will not reuse that content or license it to other clients. This is a contractual obligation that the agency can undertake and directly control.
The second is that any existing economic exploitation rights in the content are transferred exclusively to the client. Copyright law allows economic rights to be assigned. But, of course, only rights that actually exist can be transferred.
There is also a further issue, distinct from the previous ones, concerning the uniqueness of the result: can the professional using AI guarantee to the client that the same content, or very similar content, will not also be generated for other users?
This distinction between exclusivity of rights and uniqueness of the output becomes particularly important when generative systems are involved in the creative process.
Why does “exclusive” not necessarily mean “unique”?
This issue emerges particularly clearly with generative systems.
Two people may give similar instructions and obtain similar results. In some cases, even different instructions may lead to visually or conceptually similar solutions.
This does not automatically mean that the first user’s rights have been infringed. Rather, it means that the technical non-uniqueness of the output must be kept separate from the existence of a legal exclusive right.
If the result contains a sufficient human creative contribution and constitutes a protected work, the right holder may of course oppose the unlawful reproduction or exploitation of that work under the ordinary rules of copyright law.
But similarity between two outputs does not, by itself, prove that the second derives from the first.
The issue becomes even clearer when the original output does not meet the threshold required for copyright protection. In that case, a promise to grant the client an “exclusive” right risks being much broader than the rights the professional can actually transfer.
For this reason, ownership, exclusivity and uniqueness should not be used as synonyms.
They are different concepts and, especially in contracts governing AI-generated content, they should be addressed separately.
What exclusivity can actually be guaranteed to the client?
When AI is used within a predominantly human creative process, there may certainly be a protected work, and the related economic rights may be transferred to the client to the extent permitted by law.
It is also possible to undertake additional contractual obligations: for example, not to reuse the content for other clients, not to license it to third parties, or to use tools and configurations that provide certain confidentiality safeguards.
More delicate, however, is a clause under which the professional broadly guarantees that the content is “unique”, “original”, “exclusive” and that no third party will be able to obtain identical or similar results.
A clause of this kind may turn an ordinary assignment of rights into a much broader guarantee concerning circumstances that the professional may not, in practice, be able to control.
Contracts should therefore distinguish at least between: the intellectual property rights that actually exist in the result; the professional’s undertaking not to reuse or license the same content to third parties; and the possible absence of any absolute guarantee that AI providers will not generate identical or similar outputs for other users.
It is therefore precisely before using the expression “exclusively” that one must understand what right is held, what right can be transferred and, above all, what result can actually be guaranteed to the client.
Artificial intelligence does not prevent professionals from working exclusively for a client. It does, however, require greater precision in defining what that exclusivity means.
Revisionato da: Arlo Canella
Data di pubblicazione: 29 Settembre 2026
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Margherita Manca
Avvocato presso lo Studio Legale Canella Camaiora, iscritta all’Ordine degli Avvocati di Milano, si occupa di diritto industriale.