Are the results of AI generators protectable at all?

Artificial intelligence (AI) is getting better at generating content such as text, images or music. But who actually owns the copyrights to these works? This is a question that more and more people are asking as AI generators become more popular. In Germany, the legal situation in this regard is still unclear. In this blogpost I will discuss the issue and whether the results of AI generators are copyrightable in Germany.

AI generators and intellectual property

AI generators have gained tremendous importance in recent years. Not only can they generate text, images or music, but they can also be used in many other fields, such as medicine or the automotive industry. Although AI generators are capable of producing fascinating results, it is important to remember that they are not personal intellectual creations in the classical sense. The work of an AI is basically just an algorithm based on a certain amount of data. She has no ideas, emotions or imagination of her own.

Copyright protectability of AI-generated content

In Germany, works must generally meet two requirements in order to be protected by copyright: they must represent a personal intellectual creation and they must reach a certain level of creation. Since AI generators do not produce individual intellectual creations, the results, in the worst case, cannot be copyrighted either. There are then no copyrights or exploitation rights to this content. At least, this is true for the original content. It could be different if one uses the results of an AI as a basis and then extends or adapts this result itself. There will probably be nice demarcation problems and legal issues here in the future.

The role of the “principal

In practice, it is often difficult to clarify who owns the copyrights to an AI-generated work. When a person hires an AI to create a particular work, it is usually assumed that the client owns the copyrights. This is because AI is just a tool used by the client to achieve a certain result. However, in some cases it may be difficult to determine the principal’s share and the AI’s share in the creation of the work.

Conclusion: Clarification of the legal gray area necessary

It is important to clarify the issue of copyrights of AI-generated content as the application of AI generators increases in various fields. So far, the legal situation has not been clearly clarified, which may lead to uncertainty. Clarifying the legal gray area would not only provide clarity, but also help AI generator developers and those commissioning the works to adhere to clear rules. Such clarification can also help drive innovation in AI generators by creating a stable legal foundation that provides certainty for developers. The fact that the question of the copyrightability of AI-generated content is still unclear has already led to some legal disputes. Especially in the field of journalism and art, there are already numerous examples where AI generators have been used to create content. The lack of clarity regarding the copyrightability of such works has already led to litigation over who owns the copyright in an AI-generated work. To avoid such disputes and provide a clear legal basis, it is necessary to clarify the issue of copyrights of AI-generated content. Only in this way can both the developers of AI generators and the clients of the works be sure that they are operating within clearly defined boundaries.

By the way:

Users of AI generators should take care to clarify to their clients that AI generators are being used and to what extent. Clear communication regarding the use of AI generators is important to avoid potential litigation. If the client is not informed that an AI generator is being used to create a work and believes that it is a personal intellectual creation protected by copyright, the contractor could be liable for damages. It is therefore advisable that users of AI generators make clear in their contracts that they are using an AI generator to create the work and that the client may not receive all copyright in the work. Such clarification can help avoid potential litigation and ensure a smooth business relationship between the parties.

Author: Marian Härtel

Marian Härtel ist Rechtsanwalt und Fachanwalt für IT-Recht mit einer über 25-jährigen Erfahrung als Unternehmer und Berater in den Bereichen Games, E-Sport, Blockchain, SaaS und Künstliche Intelligenz. Seine Beratungsschwerpunkte umfassen neben dem IT-Recht insbesondere das Urheberrecht, Medienrecht sowie Wettbewerbsrecht. Er betreut schwerpunktmäßig Start-ups, Agenturen und Influencer, die er in strategischen Fragen, komplexen Vertragsangelegenheiten sowie bei Investitionsprojekten begleitet. Dabei zeichnet sich seine Beratung durch einen interdisziplinären Ansatz aus, der juristische Expertise und langjährige unternehmerische Erfahrung miteinander verbindet. Ziel seiner Tätigkeit ist stets, Mandanten praxisorientierte Lösungen anzubieten und rechtlich fundierte Unterstützung bei der Umsetzung innovativer Geschäftsmodelle zu gewährleisten.