The photographer sued to have the use of the AI-generated image prohibited, citing her copyright. (Photo: © belchonock/123RF.com)
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April 2026
An AI-generated image based on a photograph with the same subject does not infringe copyright. This is because the subject itself is not protected, ruled the Higher Regional Court of Düsseldorf.
When is an image created with AI subject to copyright ? The Higher Regional Court of Düsseldorf recently had to clarify this question in a current case. It concluded that while the AI-generated image used the same motif as the original, it did not adopt any protected design elements from it. Therefore, copyright was not infringed, because only the artistic design of an image is protected , not the motif itself.
Furthermore, the Higher Regional Court clarified what requirements an AI-generated image must meet in order to be protected by copyright.
An animal photographer took, among other things, underwater photos of dogs. One of her photos showed a dog underwater diving for a red toy ball. A dog training school she had previously worked with uploaded this photo to AI software . The AI generated a very similar image, which the dog training school then published on its website.
The photographer sued to prohibit the dog training school from using the AI-generated image . She based her claim on her copyright and the right to an injunction under Section 97 Paragraph 1 of the German Copyright Act (UrhG). The Düsseldorf Regional Court dismissed the lawsuit, ruling that the AI-generated work constituted a free adaptation within the meaning of Section 23 Paragraph 1 Sentence 2 of the German Copyright Act (UrhG).
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The photographer also failed before the Higher Regional Court (OLG) Düsseldorf , but the appeals court gave a different reason.
The judges at the Higher Regional Court ruled that the AI-generated image, lacking any comprehensible human creativity, was not an original work and therefore could not be considered a free adaptation within the meaning of Section 23 Paragraph 1 Sentence 2 of the Copyright Act .
Nevertheless, the photographer has no right to demand an injunction. The Higher Regional Court clarified that the AI-generated image is not an illegal reproduction under copyright law. This is because it did not adopt the defining creative decisions of the original . The AI-generated image differs significantly from the original in its overall impression.
Only the specific creative elements of a photograph are protected , such as framing, perspective, focus, and lighting. The subject matter or motif itself is not protected . The similarity pertains solely to the motif of a dog underwater with a red toy. The distinctive features of the original photograph, such as perspective and dynamic effect, are not present in the AI-generated image . Furthermore, the AI-generated image has a significantly more cartoonish appearance.
In this dispute, the Higher Regional Court also raised the general question of whether an AI-generated image can be subject to copyright . This is conceivable in principle as a result of human intervention. However, it depends on whether the AI user significantly influenced the design. They must specifically demonstrate which creative decisions they made and how these were reflected in the final result. This was not the case here.
"Rather, as is always the case, the decisive factor is whether the creative elements of the photographic work have been recognizably adopted ," the Higher Regional Court stated verbatim. The crucial question is whether human creative influence is exerted on the AI-generated image despite the software-controlled process. This influence must, however, pertain to the design of the specific work, for example, through individual presets during programming. "The mere selection of an AI-generated product from several suggestions is insufficient," the judgment reads. Anyone who ultimately leaves the creative decision to the AI through general, open-ended instructions during prompting does not create a new work.
Higher Regional Court of Düsseldorf, decision of April 2, 2026, file number I-20 W 2/26
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