Error #3: Trying to Protect Prompts as Copyright Works

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"So you're telling me I can't protect my prompt as a literary work? But it's the result of several iterations, it was born from my creativity and ingenuity!"

This is a common reaction among generative AI users when they discover that their prompts — those carefully crafted instructions designed to obtain specific outputs — cannot be protected under copyright. However, there is a very illustrative legal precedent: recipes.

What is a prompt?

A prompt is an instruction or set of instructions given to an artificial intelligence system to generate a desired output.

It can be as simple as "draw a cat" or as complex as a detailed scene description with precise technical specifications. In essence, it is a way of communicating to the machine what we want it to produce.

The Functional Character: The Primary Reason for Exclusion

The instructional nature of prompts

The most relevant factor that excludes prompts from copyright protection is their fundamentally functional character. In copyright law, instructions, forms, methods, and procedures are typically excluded from protection under both the LFDA and the Berne Convention.

In Mexico, the Federal Copyright Law (Ley Federal del Derecho de Autor — LFDA) is explicit on this point. Its Article 14 establishes that the following are not eligible for copyright protection:

• Ideas in themselves
• Formulas, technical solutions, and methods of operation
• Schemes, plans, or rules for performing mental acts
• Blank forms or formats to be filled in, along with their instructions

This last exclusion is particularly relevant to prompts, since they function essentially as instructions or forms for AI to generate content.

Comparison with Recipes

Recipes are an excellent parallel example. When a recipe reads:

1. Preheat the oven to 180°C 2. Mix 200g of flour with 100g of sugar 3. Bake for 30 minutes

Each step is a functional instruction designed to achieve a specific result. There is no copyright protection because the text is subordinated to its practical function.

Prompts as Technical Instructions

Similarly, a typical prompt might be:

/imagine photorealistic portrait of a young woman, wearing a red dress, dramatic lighting, shot with Canon 5D, f/1.8 aperture, golden hour, cinematic composition --ar 16:9 --v 5

Every element of this prompt is purely functional:

• "photorealistic portrait" → instruction about style
• "wearing a red dress" → specification of content
• "dramatic lighting" → technical lighting parameter
• "shot with Canon 5D" → equipment simulation
• "--ar 16:9" → technical command for format
• "--v 5" → model version parameter

The Predominance of Function Over Form

Just as with a recipe, the specific way in which these instructions are written is dictated by their function, not by a creative choice on the author's part. If someone wants to obtain a similar result, they will necessarily have to use similar terms and structures.

This is known in law as the merger doctrine: when there are very few ways to express an idea, the expression "merges" with the idea and cannot be protected.

[Merger doctrine]

For example, if we want an AI to generate an image in anime style, virtually all users will have to include phrases such as "anime style" or "in the style of Studio Ghibli." There is no way to avoid using those terms when seeking that specific result.

The Legal Exclusion Makes Practical Sense

This exclusion from protection is not arbitrary. It has important practical foundations:

1. Avoids monopolies over methods: If prompts could be protected, it would be possible to monopolize the way certain types of content are requested from AI systems. 2. Facilitates innovation: By keeping technical instructions in the public domain, all users are free to experiment with and improve prompt engineering techniques. 3. Recognizes the nature of the process: Prompts are tools for communicating with a machine, not independent creative works.

Other Fundamental Factors That Reinforce the Exclusion

Ideas, not expressions

At the heart of copyright law lies the distinction between ideas and expressions. Only original expressions are protectable, while the underlying ideas remain free for everyone to use. This idea-expression dichotomy is a fundamental principle recognized internationally.

In the case of prompts, we invariably find ourselves in the realm of ideas. When we write:

Create a steampunk version of Alice in Wonderland with Victorian-era machinery and brass clockwork elements

What we are communicating is an idea or concept we want to see realized. No matter how detailed the description may be, it remains essentially the articulation of a concept ("Alice in Wonderland in a steampunk version") rather than an independent literary work.

Different users could express the same idea in different ways:

• "Alice in Wonderland but with steam engines and mechanical creatures"
• "Victorian steampunk reimagining of Alice's adventures"
• "Wonderland as a brass and steam-powered world"

All of these variations communicate the same underlying idea. Copyright cannot grant a monopoly over the concept itself, regardless of how it is formulated.

Lack of originality

Originality is an essential requirement for copyright protection. It is not enough for something to be new; it must reflect a minimum of personal creativity on the author's part. This originality threshold presents several problems for prompts:

• Predictable combinations: Most prompts are combinations of common descriptive terms, references to existing styles, and standard technical parameters.
• Expressions dictated by necessity: The way a prompt is written is dictated by what works best with the AI, not by creative choices on the user's part.
• Brevity and simplicity: Many prompts are too brief or simple to meet the originality threshold.

The authorship problem

The question of authorship in the context of prompts presents unique and fundamental challenges:

• Limited control over the output: The same prompt can generate different results with each execution.
• The creation chain: The user provides the prompt, but the AI interprets it and generates the final content.
• The user's role vs. the AI: Providing instructions to an AI is not equivalent to creating the resulting work.
• The unpredictability of the output: Different models may interpret the same prompt in different ways.

The future of prompt engineering

The fundamentally functional character of prompts, together with their nature as ideas rather than expressions, their frequent lack of originality, and the complex authorship issues they present, firmly places them outside the scope of copyright protection.

Far from being a limitation, this legal reality fosters a more innovative and collaborative ecosystem. Just as chefs share and improve recipes, the AI user community can share, refine, and build upon existing prompts, driving the collective development of better techniques and outputs.

The true value lies not in the legal protection of individual prompts, but in the ability to create, combine, and adapt them effectively. Like the recipes of great chefs, the best prompts will be those that are shared, studied, and serve as inspiration for new creations.

Links to valuable resources related to this topic:

Are Recipes and Cookbooks Protected by Copyright?

Does Copyright Protection Extend Beyond Original Works in an AI World?

Baker v. Selden