In the rapidly evolving landscape of digital business, the delegation of content creation to Virtual Assistants (VAs) has become a standard operational procedure. Simultaneously, the explosion of Generative AI tools like ChatGPT, Midjourney, and Claude has revolutionized how that content is produced. A VA equipped with these tools can produce weeks’ worth of blog posts, social media graphics, and marketing copy in a matter of hours.

However, this efficiency comes with a hidden legal landmine that few business owners anticipate. When a human VA uses an AI tool to generate work for a client, the traditional chains of copyright ownership—specifically the “Work Made for Hire” doctrine—often break. The uncomfortable truth emerging from recent legal rulings is that in many cases, neither the VA nor the client owns the copyright, because the work effectively has no “author” in the eyes of the law.

This article explores the legal reality of AI-generated content, the specific terms of service of the tools your VAs are using, and how to structure contracts to protect your business assets.

Part I: The “Human Authorship” Requirement

To understand who owns AI content, we must first understand what copyright actually protects. In the United States and many other jurisdictions, copyright is not just a right to ownership; it is a recognition of human creative expression.

The US Copyright Office (USCO) Stance

The US Copyright Office has been explicitly clear: copyright only protects works of “human authorship.” This stance was solidified in the recent high-profile refusal to register copyright for an AI-generated image in the case of Thaler v. Perlmutter. The court upheld the USCO’s decision, stating that human beings are the essential limit of copyright protection.

This creates a significant problem for the VA-Client relationship. If a VA prompts ChatGPT to “write a 1,000-word blog post about SEO trends,” and ChatGPT generates the text, the USCO views that text as “machine-generated.” Even though the VA (the human) wrote the prompt, the prompt is viewed merely as an instruction—similar to a commission—rather than the creative act of writing. Therefore, the resulting text enters the public domain immediately upon creation.

If the work is in the public domain, it cannot be “owned.” The client cannot sue a competitor for copying that blog post, because the client never held a valid copyright to begin with.

The “Zarya of the Dawn” Precedent

The nuance of this rule was tested in the registration of the graphic novel Zarya of the Dawn. The author, Kristina Kashtanova, used the AI tool Midjourney to create the images for her book, while she wrote the text and arranged the layout.

The USCO’s final decision offered a roadmap for the future of “Hybrid” works:

• The Text: Copyrightable (Written by a human).
• The Layout: Copyrightable (Selection and arrangement by a human).
• The Images: NOT Copyrightable (Generated by AI).

For a business owner, this means if your VA uses AI to generate a logo, that logo might be unprotectable. If they use AI to write a newsletter, the specific expression of that newsletter is likely public domain, even if the “ideas” (which are never copyrightable) were yours.

Global Jurisdictions: A Fragmented Map

While the US is strict on human authorship, other countries have taken different approaches. If your VA is located in the Philippines (a common hub for VAs) but working for a UK client, which law applies?

The table below outlines the current stance of major jurisdictions regarding AI authorship.

Jurisdiction	Legal Stance on AI Authorship	Implication for Client Ownership
United States	Strict Human Authorship. Works created entirely by AI cannot be copyrighted. Only human-created elements in hybrid works are protected.	High Risk. You likely cannot copyright raw AI outputs. “Work Made for Hire” clauses may fail for AI assets.
United Kingdom	Computer-Generated Works. The UK Copyright, Designs and Patents Act (CDPA) creates a specific category for “computer-generated works” where the author is the person who made the “arrangements necessary.”	Lower Risk. The “arranger” (likely the user/VA) is deemed the author. Ownership can be transferred via contract.
European Union	Human-Centric. Similar to the US, the Court of Justice of the EU (CJEU) generally requires a work to be the author’s “own intellectual creation,” implying a human spirit.	Medium-High Risk. Purely AI works generally lack protection. The EU AI Act focuses more on transparency than ownership.
China	Case-by-Case. Recent rulings (e.g., Li v. Liu) have granted copyright to AI images where the user demonstrated significant creative input through prompts and parameter adjustments.	Evolving. Courts may recognize ownership if “sufficient intellectual investment” is proven.

Part II: The “Work Made for Hire” Doctrine vs. AI

The standard mechanism businesses use to secure ownership of work from freelancers is the “Work Made for Hire” (WMFH) agreement. Under US law, if a work is a WMFH, the employer (client) is considered the legal author from the moment of creation.

However, WMFH relies on a fundamental premise: there must be a valid copyright to transfer.

The Logic Gap

1. Standard Scenario: A graphic designer (human) draws a logo. Copyright exists. The WMFH contract assigns that copyright to the Client.
2. AI Scenario: A VA prompts Midjourney to make a logo. No copyright exists (according to USCO). The WMFH contract attempts to assign a copyright that never came into existence.

This “void” means that while you might have a contract that says “I own this,” that contract is only binding between you and the VA. It is not binding against the rest of the world. You cannot stop a third party from scraping your website and using that AI-generated logo, because it belongs to the public domain, not to you.

Employee vs. Independent Contractor

Most VAs are independent contractors, not employees. This distinction is critical.

• Employees: Generally, anything created within the scope of employment is automatically owned by the employer. However, if the employee uses AI against company policy, or if the AI output is non-copyrightable, the company still ends up with a non-asset.
• Contractors: Copyright remains with the contractor unless explicitly assigned in writing. If a VA uses AI without disclosing it, they are delivering a “defective” asset—one that lacks the intellectual property rights the client paid for.

Part III: Platform Terms of Service (The Contract Layer)

Aside from copyright law, there is the layer of Contract Law—specifically, the Terms of Service (ToS) of the AI tools themselves. Even if the law says “nobody owns this,” the platforms often say “as between us, you own this.”

However, these terms vary wildly between paid and free tiers, creating a dangerous trap for VAs who try to save money by using free versions of tools for client work.

AI Platform	Free Tier Ownership	Paid Tier Ownership	Commercial Use Rights
Midjourney	User does NOT own assets. Assets are licensed under Creative Commons (CC BY-NC 4.0). Non-commercial use only.	User owns assets. Midjourney assigns all rights to the creator.	CRITICAL RISK: If your VA uses a free account, you cannot legally use the images for business.
ChatGPT (OpenAI)	User owns Output (subject to applicable law). OpenAI assigns all right, title, and interest to the user.	User owns Output.	Generally safe for commercial use, but subject to the “non-copyrightable” legal issue.
Canva (Magic Media)	User owns the output “as between you and Canva,” but Canva explicitly warns that copyright might not exist.	Same as free tier regarding ownership, but Pro assets generally have clearer license chains.	Canva’s terms are user-friendly, but they do not override federal copyright laws.
Adobe Firefly	User owns output. Adobe indemnifies Enterprise users against IP claims.	User owns output.	Adobe is unique in offering indemnification, making it the safest choice for enterprise clients.

The “Midjourney Trap”

The most common violation in the VA world currently involves Midjourney. VAs often use their personal or free trial accounts to generate images for clients.

• The Scenario: A Client pays a VA to design a book cover. The VA generates it on a free Midjourney account.
• The Result: Under Midjourney’s ToS, that image is under a Creative Commons Non-Commercial license. The Client puts it on a book and sells it on Amazon. The Client is now technically violating the license of the image, exposing them to legal risk from Midjourney, and they do not own the image copyright.

Part IV: Practical Solutions and Hybrid Workflows

If pure AI works cannot be copyrighted, does that mean businesses should ban VAs from using AI? Absolutely not. The productivity gains are too valuable. The solution lies in “Hybrid Authorship” and Contractual Hygiene.

1. The Human-in-the-Loop Workflow (Transformation)

To secure copyright, the VA must add “sufficient human authorship” to the AI output. This transforms the work from “AI-generated” to “AI-assisted.”

• For Text: The VA should use AI for outlining, brainstorming, or drafting rough paragraphs. The VA must then significantly rewrite, edit, and restructure the content. The final product should be a human expression influenced by AI, not a copy-paste.
• For Images: The VA can use AI to generate elements (e.g., a background or a texture), but then use Photoshop to compose the final image, add typography, and manipulate the colors. The final composition is copyrightable, even if the individual elements are not.

2. The “Assignment of Rights” Clause

Since “Work Made for Hire” is shaky for AI, contracts must be bolstered with broad “Assignment” clauses. You want to ensure that even if copyright doesn’t exist, you own whatever other rights might exist (contractual rights, physical files, trade secrets).

Drafting Note: Ensure your contract assigns “all right, title, and interest, including but not limited to copyright, in and to the deliverables.” This catch-all helps transfer ownership of the physical/digital copy, even if the IP rights are void.

3. Mandatory Disclosure Protocols

The biggest risk to a client is unknown AI use. If a client assumes a logo is human-made and files for a trademark, they could commit fraud against the USPTO if it turns out to be AI-generated.

Clients must implement a “Disclosure Protocol”:

• VAs must tag deliverables as “AI-Generated,” “AI-Assisted,” or “Human-Created.”
• For AI-Assisted work, VAs should keep a log of the prompts used and the “seed” images, as well as the version history showing their human edits.

Part V: The Future of “Operator” Rights

The legal landscape is not static. There is a growing argument for “Operator Rights”—the idea that the skill required to “prompt engineer” complex outputs should be recognized as a creative act.

Just as photography was once dismissed as “mechanical reproduction” before the courts recognized the photographer’s creative choices (lighting, posing, timing), prompt engineering may eventually be recognized. However, currently, the USCO views prompts as “instructions to a commissioned artist” rather than creative tools like a paintbrush.

Until the courts shift (perhaps through an appeal in a case like Thaler), businesses must operate under the assumption that raw AI output is public domain.

Part VI: Actionable Checklist for Clients and VAs

To navigate this grey area safely, both parties in the gig economy should adhere to the following best practices.

For Clients (Business Owners)

1. Audit Your Contracts: Update your Independent Contractor Agreements to explicitly address AI.
2. Require Paid Accounts: Mandate that VAs use paid commercial seats for tools like Midjourney or ChatGPT to ensure clear commercial usage rights.
3. Prioritize Hybrid Work: Instruct VAs to use AI as a starting point, not the finish line. Significant human editing is the only way to attempt copyright protection.
4. Indemnification: Add a clause where the VA agrees to indemnify you if their undisclosed use of AI leads to a copyright or license violation.

For Virtual Assistants

1. Be Transparent: Always disclose which tools you used. Hiding AI use can lead to contract termination for cause.
2. Protect Your Client: Never use free/trial accounts for client work. The $20/month subscription is a cost of doing business that protects your client’s legal standing.
3. Document Your Process: Keep screen recordings or version histories of your editing process. If a client ever needs to prove “human authorship” to the Copyright Office, your edit history is the evidence they will need.

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Summary

The question “Who owns the copyright?” has a startling answer: Likely no one.

When a VA uses AI, the traditional transfer of ownership is disrupted. For business owners, this means shifting the strategy from “owning copyright” to “owning the competitive advantage” through speed and execution. By updating contracts and enforcing transparency, businesses can leverage the power of AI without falling victim to its legal voids.