The case involved the publishing of an AI-generated image based on a copyright protected underwater photo of a dog. The pictures can be found here. In the first instance (the District Court) denied an infringement finding that the AI-generated picture constituted a free adaptation (Section 23(1), s. 2 German Copyright Act (UrhG)) of the original photo. 

The Appellate Court (OLG Düsseldorf) upheld the ruling, albeit with a different reasoning: Since the AI image was not itself a work protected by copyright, the free adaption exemption was not applicable. 

For AI-generated works, the output could only qualify as a work and have copyright protection, where there was a human creative influence on the design of the specific work as opposed to a simple software-controlled process, in which the creative decision was ultimately left to the AI. 

No copyright infringement 

The Appellate Court nevertheless denied an infringement, reasoning that in this case only the underlying motif of a dog reaching underwater for a red toy was adopted, but not the protectable specific artistic elements of a photographic work, such as the perspective, framing, sharpness and lighting. The AI image lacked the dynamic quality of the original photographic work, which was achieved through exposure and aperture selection.

Copyright protection for AI-generated image itself? 

Only in exceptional cases, when the AI user’s prompting expresses their creative abilities in an independent manner, by making free and creative decisions and thereby imparting a personal touch to the output. This can be achieved when the user, for example, uses sufficiently individualised settings and prompts when programming the creation process for the specific work. Simply selecting an AI-generated work from among several “suggestions” is not sufficient. 

Takeaway

Thus, for an AI-generated image to enjoy copyright protection itself the user will have to demonstrate and document the creative choices and influence he exercised during the prompting process (by providing detailed information on the prompts used, the presets selected and the selection process applied to the generated outputs). 

Case details at a glance

Jurisdiction: Germany
Decision level: Düsseldorf Appellate Court
Date: 02 April 2026
Citation: 20 W 2/26
Decision: dycip.com/ai-copyright-underwater-dog