Common Mistakes in Copyright and AI (Part 1 of 3)

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The False Analogy Between AI and Works Made for Hire

In the field of copyright, I have noticed that certain misconceptions about Artificial Intelligence recur frequently. For that reason, I have decided to address the three most common mistakes in a series of articles, analyzing each one in detail:

AI-generated works are like works made for hire AI-generated works enjoy partial copyright protection Prompts can generate copyright

1. AI-generated works are like works made for hire 2. AI-generated works enjoy partial copyright protection 3. Prompts can generate copyright

Let us begin with the first mistake — perhaps the most common: the erroneous equation of AI-generated works with works made for hire.

The flawed argument and why it arises

"Creating things with AI is like a work made for hire: you give it a prompt with a precise description of what you want, just as when you tell an artist to paint you a picture in such and such a way, and the AI generates what you asked for. As with works made for hire, the economic rights belong to whoever commissioned it, right?"

This reasoning, while seemingly intuitive, reveals a superficial understanding of both the legal nature of works made for hire and the technical reality of AI. To understand why this comparison fails, we must first grasp what a work made for hire actually is.

Works made for hire under Mexican law

The Federal Copyright Law (Ley Federal del Derecho de Autor, LFDA) defines this concept with precision. According to Article 83, "unless otherwise agreed, the natural or legal person who commissions the production of a work, or who produces it with the paid collaboration of others, shall enjoy ownership of the economic rights therein."

What is crucial here is to understand that we are not dealing with a transfer of rights, but rather with a legal fiction: the law recognizes, from the outset, ownership of the economic rights in favor of whoever commissioned the work.

Article 83 bis complements this provision by establishing essential formal requirements: "For a work to be considered made for hire, the terms of the contract must be clear and precise; in case of doubt, the interpretation most favorable to the author shall prevail. The author is also empowered to draft the contract when commissioned to produce a work for hire."

The cornerstone: the author is always human

The element that completely dismantles the analogy with AI is found in Article 12 of the LFDA: "An author is the natural person who has created a literary or artistic work."

This definition, in its apparent simplicity, establishes fundamental principles:

Only a natural person can be an author Authorship is linked to the act of creation Authorship is the foundation upon which the entire copyright system is built

• Only a natural person can be an author
• Authorship is linked to the act of creation
• Authorship is the foundation upon which the entire copyright system is built

Why does the comparison with AI fail?

When we analyze AI generation against works made for hire, we find four essential incompatibilities:

Legal personhood : AI is not a person recognized by law, and therefore cannot be a party to a legal relationship involving a work made for hire. Moral rights : In a work made for hire, the human author retains moral rights, including recognition of authorship. AI, not being a natural person, cannot hold these rights. Originality : Whereas a work made for hire involves the creation of an original work protectable by copyright — the product of human intellect — AI generates content based on combinations of pre-existing data without producing true originality in the legal sense. Contractual aspects : A work made for hire requires a contract with clear terms between persons recognized by law, something impossible with AI.

1. Legal personhood : AI is not a person recognized by law, and therefore cannot be a party to a legal relationship involving a work made for hire. 2. Moral rights : In a work made for hire, the human author retains moral rights, including recognition of authorship. AI, not being a natural person, cannot hold these rights. 3. Originality : Whereas a work made for hire involves the creation of an original work protectable by copyright — the product of human intellect — AI generates content based on combinations of pre-existing data without producing true originality in the legal sense. 4. Contractual aspects : A work made for hire requires a contract with clear terms between persons recognized by law, something impossible with AI.

Practical implications

This distinction has significant consequences:

Legal framework : Works made for hire operate within a defined legal framework, whereas AI-generated works lack this legal backing. Legal certainty : In Mexico, the situation is unequivocal: AI-generated works cannot be considered works made for hire because they do not satisfy the basic requirements of the LFDA.

1. Legal framework : Works made for hire operate within a defined legal framework, whereas AI-generated works lack this legal backing. 2. Legal certainty : In Mexico, the situation is unequivocal: AI-generated works cannot be considered works made for hire because they do not satisfy the basic requirements of the LFDA.

AI generation is a new technological phenomenon that requires its own legal framework. Forcing it into existing legal constructs is not only technically incorrect but can also generate confusion about fundamental rights and obligations.

In our next article, we will address another common mistake: the belief that AI-generated works can enjoy partial copyright protection.