Who Owns Your Draft? Understanding AI, Copyright, and Privilege

With AI gaining ground in law firms and legal departments, a whole new set of questions is emerging for the modern practitioner. Law firms, including large law firms, are making strategic investments in AI, establishing dedicated AI practice groups, and integrating AI into their workflows and business models to enhance productivity and competitiveness. The ability of a firm to adapt, scale, and leverage AI tools—often with the addition of data scientists and AI engineers to legal teams—has become crucial for maintaining a competitive advantage. AI is transforming the legal field by introducing new use cases, improving processes, and reshaping the workplace, while also requiring significant investment in AI capabilities and infrastructure. As large language models like ChatGPT and other AI chatbots are trained on vast datasets, they generate responses and ai output that can be used for a variety of legal tasks, but these responses must be carefully reviewed by humans to ensure accuracy and prevent harm. The importance of public domain data and the legal implications of using copyrighted materials in AI training are also central, as only works created by a human author are eligible for copyright protection. AI-generated content often serves as the framework or structure of a house, requiring modification and independent creation to ensure originality and compliance. Industry reports provide authoritative insights into these developments, and legal professionals are encouraged to explore additional case studies and future possibilities as the legal field continues to evolve.

These are not theoretical questions—they go to the heart of client protection and ethical lawyering in the 21st century. AI tools are enhancing a lawyer's ability to serve clients, adapt to new working environments, and manage the increasing complexity of legal data. The integration of AI into legal processes—such as research, document review, and case analysis—improves efficiency and accuracy, but also demands new skills and structured learning paths, including courses for legal professionals and law students. Law students are now expected to engage with AI tools, and law firms are preparing them for a future where advanced AI capabilities are integral to legal work. The need for human oversight remains critical to maintain accuracy, prevent errors, and avoid potential harm. In the past, attitudes toward AI were cautious, but there is now a positive sentiment regarding AI integration in the workplace. As AI continues to impact the legal field in the coming years, evolving skills, new challenges, and the development and evaluation of specific AI use cases will shape the profession.

Introduction to Artificial Intelligence in Law

Artificial intelligence is rapidly reshaping the legal profession, ushering in a new era for law firms and legal professionals alike. By integrating AI tools into core legal processes—such as legal research, document review, and contract analysis—firms are achieving unprecedented time savings and elevating the quality of legal services delivered to clients. This transformative force is streamlining workflows, reducing manual effort, and enabling lawyers to focus on higher-value tasks that require human judgment and expertise.

As AI-generated content becomes more prevalent in the legal industry, legal professionals must navigate a complex landscape of intellectual property, copyright, and data security concerns. The adoption of artificial intelligence AI in law is not without its challenges, but it also presents significant opportunities for innovation and improved client service. Law firms that embrace these technologies are better positioned to meet the evolving demands of clients, enhance the efficiency of their legal work, and maintain a competitive edge in a rapidly changing market.

The Role of Law Firms in the Digital Age

In today’s digital age, law firms are leading the charge in adopting AI tools to enhance the delivery of legal services. By leveraging generative AI, large language models, and machine learning, firms are automating routine legal tasks—such as document drafting, due diligence, and legal research—allowing lawyers to dedicate more time to complex, strategic matters that require their expertise. This shift not only improves the quality of legal services but also increases efficiency and responsiveness to client needs.

To fully realize the benefits of AI systems, law firms must invest in comprehensive training and development programs that equip lawyers with the skills to work effectively alongside these advanced tools. Data security and confidentiality remain paramount, as the protection of sensitive client information is foundational to the attorney-client relationship. By prioritizing robust security measures and fostering a culture of continuous learning, law firms can harness the power of AI while maintaining the trust and confidence of their clients.

AI as a Tool—Not an Author

Let’s clear up a common misconception: AI models don’t “own” outputs. The current legal consensus in the U.S. is that copyright can only attach to material created by a human being—not a machine. Copyright protection is only available for works created by a human author; AI-generated content alone cannot be registered as copyright. See, e.g., Thaler v. Perlmutter, 130 F.4th 1039, 1045-1046 (D.C. Cir. 2025) (“But traditional tools of statutory interpretation show that, within the meaning of the Copyright Act, ‘author’ refers only to human beings. . . . the current Copyright Act’s text, taken as a whole, is best read as making humanity a necessary condition for authorship under the Copyright Act.”). The U.S. Copyright Office has repeatedly rejected copyright claims for works “authored” by AI alone.

When creating AI-generated content, it is important to consider whether copyrighted materials were used in the AI’s training data, as this can raise legal implications regarding potential copyright infringement. Using public domain materials for training and content creation helps avoid these issues.

But what happens when an attorney directs the creation of content—supplying the facts, uploading documents, selecting models, and reviewing the results? In this scenario, the AI is simply a sophisticated drafting assistant, and authorship remains squarely with the attorney. The process and structure of creating AI-generated drafts involve the attorney’s oversight at each stage, ensuring the final work meets legal standards. See id. at 1049 (“[T]he human authorship requirement [under the Copyright Act] does not prohibit copyrighting work that was made by or with the assistance of artificial intelligence. The rule requires only that the author of that work be a human being—the person who created, operated, or used artificial intelligence—and not the machine itself. The Copyright Office, in fact, has allowed the registration of works made by human authors who use artificial intelligence.”); see also Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16,190, 16,192 (March 16, 2023) (Whether a work made with artificial intelligence can be registered depends “on the circumstances, particularly how the AI tool operates and how it was used to create the final work.”).

When reviewing AI-generated drafts, attorneys must focus on the accuracy of the AI output and use their ability to ensure the quality and reliability of the final product. Inaccurate or misleading AI output can cause harm, such as spreading misinformation or jeopardizing legal work, so human oversight is essential.

In other words: The drafts you generate with AI are yours, not the property of a tech vendor—or the robot itself. Authoritative reports, such as those issued by the Copyright Office, play a crucial role in shaping legal standards and guiding best practices in this evolving area.

Confidentiality and Privilege: How Secure Is Your AI-Generated Work?

Naturally, lawyers must do more than just worry about copyright. What about attorney-client privilege? Are you exposing client confidences every time you upload documents into a legal tech platform?

• Vendor Selection Matters: Not all legal tech is created equal. You must vet platform security through a thorough process, often involving data scientists who assess the integrity and safety of the technology. First Drafts, for example, is engineered from the ground up to respect the duties of confidentiality and privilege. Only licensed attorneys can use it, and all data is encrypted and isolated from the public. Significant investment is required to develop secure AI tools for the legal workplace, ensuring that both internal and client-focused practices are protected.
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• Cloud Ethics Opinions Are Clear: Both the ABA and almost all state bars have now signed off on cloud use for legal practice—so long as lawyers perform reasonable diligence about security, confidentiality, and control of client data. Accuracy is paramount, and lawyers play a critical role in maintaining confidentiality and ensuring that sensitive information is not compromised. See, e.g., https://www.americanbar.org/groups/litigation/resources/newsletters/professional-liability/ethics-cloud-based-storage/. In short: using vetted, secure AI tools is no less ethical than using Westlaw, Clio, or any mainstream cloud platform. When considering data security, it is also important to use public domain data where possible to further protect client information.
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• Work Product Doctrine Applies: Drafts generated for legal work and under the control of the attorney are generally protected attorney work-product until and unless disclosed. When using AI-generated drafts, human review of AI output is essential to ensure both accuracy and confidentiality are maintained throughout the process.

Case Law and Technological Advancements

The rapid advancement of technology is prompting courts and regulators to address new legal questions surrounding AI-generated content. Legal professionals are encountering novel challenges related to authorship, ownership, and copyright as AI tools become integral to the creation of legal documents and other works. Recent developments in case law are beginning to clarify the boundaries of intellectual property rights in the context of AI-generated work, but many questions remain.

The Copyright Office is actively working to provide guidance on these issues, recognizing the need to adapt existing frameworks to accommodate the realities of AI-generated content. As case law continues to evolve, legal professionals must stay informed and agile, ensuring that their practices remain compliant with emerging standards and regulations. By keeping pace with these changes, lawyers can effectively address the challenges posed by new technologies and safeguard the interests of their clients.

The Copyright Office and AI

The Copyright Office plays a pivotal role in defining the legal landscape for AI-generated content. As AI tools become more sophisticated and widely used, the office faces the complex task of balancing the protection of intellectual property with the encouragement of creativity and innovation. Questions about authorship, ownership, and the copyrightability of AI-generated works are at the forefront of this evolving area of law.

To address these challenges, the Copyright Office is engaging with stakeholders across the legal and technology sectors, monitoring developments, and issuing guidance to clarify the status of works created with the assistance of AI. By establishing clear and adaptable regulations, the Copyright Office helps ensure that the legal framework supports both the rights of creators and the continued advancement of AI technologies. This ongoing work is essential for fostering a fair and dynamic environment for legal professionals and innovators alike.

Discovery and the “AI Draft”

A hot topic: if your AI-generated rough draft is saved, can opposing counsel force you to turn it over?

The short answer: Generally, work-product protection applies to drafts, regardless of whether produced by AI or by hand—assuming you do not disclose them to third parties or rely on their content in a way that waives protection. See, e.g., Tremblay v. OpenAI, No. 23-cv-03223-AMO, 2024 U.S. Dist. LEXIS 141362, 2024 WL 3748003, at *2-3 (N.D. Cal. Aug. 8, 2024) (holding that prompts created by attorneys reflected their mental impressions and opinions, making them work product rather than mere factual material); Concord Music Grp., Inc. v. Anthropic PBC, No. 24-cv-03811-EKL (SVK), 2025 LX 11797, 2025 WL 1482734, at *1 (N.D. Cal. May 23, 2025) (“Anthropic’s initial argument, that the information it seeks (undisclosed prompts and outputs, and the settings therefore) is not privileged is unpersuasive. . . . failed prompts and related settings are attorney work product.”). During the process of discovery, maintaining the accuracy of privileged material is essential to ensure that sensitive information is not inadvertently exposed.

Still, be aware of practice-specific risks. If you insert privileged or work-product material into a third-party service without due diligence, you could create unnecessary risk. There is also the potential for harm if AI-generated drafts are not properly secured, as inaccuracies or unauthorized disclosures could jeopardize legal work. That’s why using purpose-built, attorney-only platforms like First Drafts is so critical. Developing secure AI tools requires significant investment in technology and infrastructure, as well as the expertise of data scientists to ensure robust security measures.

When it comes to due diligence, the ability of lawyers to manage risk is greatly enhanced by implementing structured processes that help safeguard privileged information throughout the workflow.

Takeaways for Modern Legal Practice

• You—not the AI—own the first draft. AI is a tool, not an author. Ensuring the accuracy of AI-generated drafts is essential to maintain the quality and credibility of your legal work.
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• Privilege and work-product remain intact, so long as you use secure, professionally-designed platforms and maintain control. Lawyers play a critical role in maintaining privilege and confidentiality throughout the process.
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• Protect your client by vetting tech vendors. Don’t upload sensitive material into consumer-grade, non-legal AI tools. Investment in thorough vetting and secure processes is necessary to safeguard client information and support long-term firm growth.
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• Don’t let misconceptions slow you down. The biggest risk is falling behind, not moving forward with careful innovation. However, misconceptions about AI can cause harm if not addressed, so lawyers must use their ability to manage risk through structured processes and human oversight.

Conclusion

In conclusion, the integration of artificial intelligence into the legal profession is fundamentally transforming how law firms operate and how legal professionals deliver services. As the legal industry evolves, questions of intellectual property, copyright, and data security are becoming increasingly central to the practice of law. Law firms, lawyers, and clients must remain vigilant, staying informed about technological advancements and adapting to new challenges as they arise.

By embracing the opportunities presented by AI and proactively addressing the associated risks, the legal profession can leverage technology to deliver higher-quality legal services, drive innovation, and protect the rights of individuals and organizations. The future of law will be shaped by the effective collaboration between human expertise and artificial intelligence, ensuring that the legal profession continues to thrive in the digital age.

Competence Includes Understanding These Issues

Competent, ethical advocacy today demands that lawyers understand not just the law, but the infrastructure supporting legal work. Taking a course on AI and collaborating with data scientists can help legal professionals stay competent in this evolving field. Knowing who owns your draft and how to protect client data is now as critical as knowing your jurisdiction’s local rules.

When it comes to competence, accuracy in legal work is essential, and lawyers must have the ability to adapt to new technologies to maintain high standards and credibility.

At First Drafts, we’re committed to giving attorneys the confidence to innovate—securely, ethically, and with full ownership of their work. Don’t let outdated worries sideline your practice. Join the modern bar, and draft smarter—on your terms. We encourage you to explore new opportunities in legal technology and invest in professional development to stay ahead in the legal profession.

Have more questions about privilege, copyright, or legal drafting technology? Contact us—we’re happy to talk legal tech, ethics, and the future of competent advocacy.

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