Artificial intelligence is becoming an everyday creative tool. Companies use it for advertising visuals, social media content and product concepts. Designers and marketing teams treat AI as an idea generator. But an increasingly common question arises: can an AI-generated result infringe copyright?

This question is particularly relevant when a protected photograph or illustration is fed into an AI tool and a similar – but not identical – result is produced. Can such an image be considered an original work? Is it mere inspiration – or unlawful copying?

What the German Court Said: AI and a Protected Photograph

A German court examined a situation in 2024 where an AI-generated image of a dog was created based on a protected photograph. The original showed a dog underwater reaching for a red toy. The AI image featured the same motif: a dog underwater and a similar red object.

The court ruled that in this specific case there was no copyright infringement. The decision matters not only for AI creators, but also for businesses and marketing teams using AI tools in commercial activities.

Important: this ruling does not mean AI tools can be freely used to copy protected works. Each situation is assessed individually.

What Copyright Protects – and What It Does Not

Copyright – is the legal protection granted to original creative expression. It is grounded in EU Directive 2001/29/EC and the national copyright legislation of each member state.

One of the fundamental principles of copyright: what is protected is not ideas, themes or plots, but the specific form in which they are expressed.

What is and is not protected by copyright

The idea of showing a dog underwater is not protected. The specific way that dog was photographed – the angle, light, moment, colour aesthetic, composition – may already be protected creative expression.

Several creators can independently produce works on the same subject: a dog in a pool, a person in the rain, a city at night – and these will be separate protected works if each contains original creative expression elements.

Why Similarity Does Not Always Mean Infringement

Two images may be similar in theme, mood or choice of objects – but this does not legally mean that one work copies the other.

In the German court ruling, the key issue was that the AI result reproduced a general motif, but the court assessed: does the AI image reflect those specific creative decisions of the photographer that gave the original photograph its individual character?

If the AI image does not appropriate the original composition, lighting, perspective, framing and other specific artistic elements – mere general similarity of subject matter may be insufficient to establish copyright infringement under EU Directive 2001/29/EC.

When Does Using AI Carry the Highest Legal Risk?

Risk arises when the AI result becomes too close to a specific protected work. Pay particular attention to these scenarios:

• The AI image reproduces not only the general theme but also a very similar composition, object arrangement, perspective or colour combination.
• A specific protected work is fed into the AI tool with a request to create a result that is “very similar”, “in the same style”, or “almost identical”.
• The result is used in a broadly visible commercial advertising campaign without any additional legal assessment.
• The creative process is not documented and independent creative contribution cannot be demonstrated later.

AI Use Risk Level Comparison

What Businesses Should Know: Practical Rules

AI offers businesses many practical advantages: faster content creation, lower visual concept costs, more creative alternatives. However, commercial use of AI results requires caution.

When using AI-generated images in advertising or on a website

• Avoid using specific protected works as a direct template, especially without the rights holder’s permission.
• Ensure the AI result is not too similar to a specific work, trade mark or character.
• Change composition, perspective, lighting, colour direction – not just ask the AI to “do it differently”.
• For commercial projects, conduct an additional legal assessment, especially before a broadly visible advertising campaign.

The Importance of Documentation

Document the creative process: prompts used, intermediate versions, human-made changes and reasons for selecting the final result. Such documentation can be useful if questions arise later about creative contribution.

AI Authorship: What Qualifies as a Work under the Law?

A work – is an original creative activity in which the author’s personality is expressed. EU Directive 2001/29/EC and national copyright laws require that protection attaches to a work that is the author’s own intellectual creation.

The question of authorship for AI-generated works is not yet definitively resolved in EU or national law. Some jurisdictions lean towards attributing authorship to the person who formulated the prompts and selected the final result. Other positions hold that without human creative contribution, authorship cannot be recognised.

Practical recommendation: if you wish to use an AI result for commercial purposes and protect it as an intellectual property asset – contact METIDA copyright specialists for an individual assessment of your situation.

Conclusion: AI Does Not Override Copyright Rules

Artificial intelligence changes the creative process, but it does not override the fundamental principles of intellectual property protection established in EU Directive 2001/29/EC and national copyright laws.

The most important question remains the same: was the protected expression of a work appropriated? Inspiration, a general theme or a similar motif are typically insufficient to establish copyright infringement.

The use of AI should be conscious and responsible. For businesses, this means not only technological efficiency but also proper risk management – especially in commercial projects.

The author of the article is Attorney-at-Law, Patent Attorney Erikas Saukalas.