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. One of the most pressing: who actually owns the content created by an AI-powered draft tool? Is it protected by copyright? Is it privileged? Can opposing counsel demand discovery of your “AI-generated first draft”? And do you risk waiving privilege or confidentiality by using legal tech?

These are not theoretical questions—they go to the heart of client protection and ethical lawyering in the 21st century.

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. 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.

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. 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 is can be registered depends “on the circumstances, particularly how the AI tool operates and how it was used to create the final work.”).

In other words: The drafts you generate with AI are yours, not the property of a tech vendor—or the robot itself.

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. 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.
• 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. 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.
• 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.

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.

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. That’s why using purpose-built, attorney-only platforms like First Drafts is so critical.

Takeaways for Modern Legal Practice

• You—not the AI—own the first draft. AI is a tool, not an author.
• Privilege and work-product remain intact, so long as you use secure, professionally-designed platforms and maintain control.
• Protect your client by vetting tech vendors. Don’t upload sensitive material into consumer-grade, non-legal AI tools.
• Don’t let misconceptions slow you down. The biggest risk is falling behind, not moving forward with careful innovation.

Competence Includes Understanding These Issues

Competent, ethical advocacy today demands that lawyers understand not just the law, but the infrastructure supporting legal work. Knowing who owns your draft, and how to protect client data, is now as critical as knowing your jurisdiction’s local rules.

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.

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.