The use of artificial intelligence (AI) is increasingly opening up new possibilities for creating and editing digital content. In image design in particular, suitable AI applications can be used to create new visual representations. However, these technical possibilities raise numerous copyright issues. Of particular importance is the question of the circumstances under which a copyrighted photograph may be used as a template for an AI-generated image and when such use infringes existing copyright or related rights.
Another question is whether AI-generated images can themselves enjoy copyright protection. Under § 2 Abs. 2 Urheberrechtsgesetz (UrhG, German Copyright Act), a work is protected only if it constitutes the author’s own intellectual creation. A human creative contribution reflecting individual creative choices is therefore required.
In the case of images whose creation is largely determined by automated processes and AI systems, the decisive factor is therefore whether and to what extent a human creatively influenced the specific form of the result. The mere technical generation of an image by an AI system does not in itself establish copyright protection. Whether individual instructions, targeted prompting or step-by-step intervention in the generation process are sufficient depends on the circumstances of the individual case.
The Oberlandesgericht Düsseldorf (Düsseldorf Higher Regional Court) addressed these issues in its decision of 2 April 2026 (Az. (case no.) I-20 W 2/26). The proceedings concerned the use of a photograph of a dog underwater as the basis for creating an AI-generated image in a comic-book style.
In particular, the court had to examine whether the AI-generated image had incorporated copyrighted design elements from the original photograph. In doing so, it had to distinguish between the unprotected subject matter and its specific photographic rendition. It also had to assess whether the AI-generated image itself met the requirements for a copyrighted work.
Photograph Used as a Template for an AI-Generated Image
The proceedings arose from a dispute between an animal photographer and a former cooperation partner. The applicant operated an animal photography business and produced underwater photographs of dogs, among other subjects. She had taken one of the photographs herself and subsequently adjusted its contrast, sharpness and colour.
The respondent had previously worked with the photographer. He uploaded the image file she had created to AI software and instructed the program to create a new image on that basis.
The result showed a dog reaching for a red toy underwater. Unlike the original photograph, however, the new image had a distinctly comic-book-like appearance. The respondent subsequently published the AI-generated image on his website.
Photographer Alleges Infringement of Her Copyright
On 15 October 2025, the photographer became aware of the publication. She considered the use of her photograph to be an infringement of her copyright and initially sent the respondent an unsuccessful cease-and-desist letter.
She then applied to the Landgericht Düsseldorf (Düsseldorf Regional Court) for a preliminary injunction. The respondent was to be prohibited from reproducing or making the AI-generated image available to the public without her consent.
LG Düsseldorf Rejects Application for a Preliminary Injunction
The Landgericht Düsseldorf rejected the application by order dated 22 December 2025 (Az. 12 O 282/25).
In its reasoning, the Regional Court stated that the AI-generated image constituted a free adaptation of the original photographic work under § 23 Abs. 1 Satz 2 UrhG. Although both images depicted the same subject, their respective overall impressions differed considerably. In particular, there were clear differences in terms of colour scheme, perspective, composition and sharpness.
The photographer lodged an immediate appeal against this decision. She argued that the two images were virtually identical and that the adoption of the subject matter was also relevant under copyright law. She further contended that a particularly strict standard had to be applied when assessing AI-generated images.
The Oberlandesgericht Düsseldorf therefore had to decide whether the use of the original photograph to create and subsequently publish the AI-generated image constituted copyright infringement.
OLG Düsseldorf: No Copyright Infringement by AI-Generated Image
The Oberlandesgericht Düsseldorf dismissed the applicant’s immediate appeal. The Regional Court’s decision was therefore upheld in its outcome; the decision was issued in preliminary injunction proceedings and is not open to an appeal on points of law under § 542 Abs. 2 Zivilprozessordnung (ZPO, German Code of Civil Procedure). The photographer was ordered to bear the costs of the appeal proceedings.
The judicial panel held that the publication of the AI-generated image infringed neither the photographer’s copyright nor her related right as the producer of a photograph.
In doing so, the court undertook a differentiated legal assessment. It first clarified that the AI-generated image did not constitute a free adaptation within the meaning of § 23 Abs. 1 Satz 2 UrhG. It then separately examined whether publication of the image constituted an infringing reproduction of the original photograph.
No Free Adaptation Under § 23 Abs. 1 Satz 2 UrhG
Under § 23 Abs. 1 Satz 2 UrhG, a free adaptation exists where the adaptation of an existing work gives rise to a new work that maintains sufficient distance from the original work.
The OLG Düsseldorf emphasised that this first requires the existence of a new work that is itself protected by copyright. The decisive question is therefore whether the new form meets the requirements of the author’s own intellectual creation under § 2 Abs. 2 UrhG.
For AI-generated images, this requires sufficient human creative influence over the specific result despite the software-controlled creation process.
The judicial panel was unable to establish such influence in the present case. The respondent had not explained which specific creative decisions he had made when creating the image.
There was therefore no independently copyrighted work that could have been classified as a free adaptation within the meaning of § 23 Abs. 1 Satz 2 UrhG.
When Do AI-Generated Images Enjoy Copyright Protection?
The OLG Düsseldorf considered in greater detail the circumstances under which an image created with the assistance of artificial intelligence may itself enjoy copyright protection.
Under § 2 Abs. 2 UrhG, copyright protects only the author’s own intellectual creations. This requires the author’s personality to be reflected in the work through free and creative choices.
In the court’s view, these requirements can, in principle, also be met by AI-generated output. The decisive factor is the extent to which the human user creatively influenced the specific form of the result despite the software-controlled creation process.
Such influence may, for example, be exerted through sufficiently individual instructions and settings when programming the specific creation process. Successive intervention during prompting may also be sufficient in principle, provided that it reflects independent creative choices and that these choices shape the specific form of the result.
By contrast, merely selecting one of several images generated by the AI is not sufficient. Nor are general, open-ended instructions sufficient where the actual creative decisions are ultimately left to the AI. In the court’s view, this also applies where numerous such instructions are entered in succession and the appearance of the result consequently changes step by step.
Burden of Pleading and Substantiation Regarding Human Creative Influence
Another important finding in the decision concerns the burden of pleading and substantiation. In the view of the OLG Düsseldorf, the party relying on an AI-generated output’s status as a protected work must generally plead and substantiate that the output meets the requirements for copyright protection.
In the present case, this was the respondent. He had argued that the AI-generated image constituted a free adaptation.
Despite a corresponding indication from the court at the oral hearing, however, he failed to provide even a rudimentary explanation of the specific creative decisions he had made. In particular, he provided no comprehensible information regarding the prompting or his influence over the generation process.
The court therefore denied that the AI-generated image had the independent status of a protected work.
No Copyright Infringement Through Adoption of the Image’s Subject Matter
Although the AI-generated image did not itself enjoy independent copyright protection and did not constitute a free adaptation within the meaning of § 23 Abs. 1 Satz 2 UrhG, this did not automatically mean that its publication constituted copyright infringement.
Instead, the OLG Düsseldorf focused on the separate question of whether the AI-generated image had incorporated protected creative elements from the original photograph.
In doing so, the judicial panel followed the principles developed by the Gerichtshof der Europäischen Union (EuGH, Court of Justice of the European Union) regarding reproduction under copyright law. In particular, it took account of the case law of the Gerichtshof der Europäischen Union in Case C-580/23.
When Does an Adoption Amount to Copyright Infringement?
According to the case law of the Gerichtshof der Europäischen Union, even the adoption of a comparatively small part of a copyrighted work may constitute an infringement. The decisive factor is not merely the extent of the part adopted, but its creative content.
The part adopted must, in itself, express the author’s own intellectual creation. In addition, the creative elements of the protected work must have been incorporated into the contested subject matter in a recognisable form.
In this regard, the EuGH requires a two-stage assessment: first, it must be established whether protected creative elements of the original work were used without consent. It must then be determined whether those specific elements are recognisable in the contested subject matter.
A mere comparison of the overall impression of the two works is not decisive for this purpose.
Which Creative Elements of a Photograph Are Protected by Copyright?
The assessment of a potential copyright infringement therefore depends on which specific creative elements of the original photograph were adopted and whether they are based on the photographer’s personal creative choices.
The OLG Düsseldorf clarified that the following elements of a photograph, in particular, may be protected by copyright:
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the choice of framing,
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the perspective,
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the lighting, and
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the sharpness or blurring produced by the combination of aperture and exposure time.
By contrast, the theme and subject matter of a photograph are generally not protected. Copyright protects the specific creative form of a work, but not the underlying idea or the depicted subject as such.
Only Unprotected Elements Were Adopted in the Specific Case
In the present case, the original photograph depicted a dog underwater reaching for a red toy.
Through her choice of framing and perspective, the photographer had created a particular visual effect. The dog’s head and the toy were almost exclusively in the foreground. The remainder of the dog’s body receded markedly into the background due to the deliberately created blurring. This produced a realistic and dynamic depiction.
The AI-generated image differed considerably in this respect. It had a comic-book-like appearance and showed the dog’s entire body. In addition, the dog appeared to be reaching for the toy not only with its mouth but also with its front paws extended far forward. The dynamic effect of the original photograph created by the exposure and choice of aperture was likewise not recognisable in the AI-generated image.
In the view of the OLG Düsseldorf, the image therefore did not incorporate the specific creative elements based on the photographer’s personal creative choices. Only the subject matter as such had been adopted. However, this does not enjoy independent copyright protection.
There was therefore no infringing reproduction of the original photograph. Consequently, there was no entitlement to injunctive relief under § 97 Abs. 1 UrhG.
No Infringement of the Related Right Under § 72 UrhG
The OLG Düsseldorf also examined whether the photographer’s related right under § 72 UrhG had been infringed.
This provision grants simple photographs independent statutory protection even if they do not meet the requirements for photographic works under § 2 Abs. 1 Nr. 5 UrhG. The Urheberrechtsgesetz thus distinguishes between photographic works, which are protected on the basis that they constitute the author’s own intellectual creation, and simple photographs, which enjoy statutory protection for photographs.
However, the court also found no infringement in this respect. Protection under § 72 UrhG relates to the specific photographic image. An infringement therefore requires the photographic achievement itself to have been appropriated.
As the AI-generated image incorporated neither the characteristic framing nor the perspective or visual effect created by the sharpness and blurring of the original photograph, there was no infringement of the related right either.
The OLG Düsseldorf therefore concluded that neither the copyright in the photographic work nor the photographer’s related right under § 72 UrhG had been infringed.
Use of the Photographer’s Sign Was Not at Issue in the Proceedings
Finally, the court also commented on the placement of the photographer’s sign on the AI-generated image.
The photographer had also objected to this use as unauthorised. However, the OLG clarified that the use of the sign constituted a separate subject matter of the dispute on which the applicant had not based her application in the proceedings at first instance.
Furthermore, there were no grounds for interim relief in relation to such a claim in the preliminary injunction proceedings. The court therefore did not rule on the merits of any potential claims arising from the use of the sign.
Legal Significance of the OLG Düsseldorf Decision
The decision of the Oberlandesgericht Düsseldorf of 2 April 2026—which is not open to an appeal on points of law under § 542 Abs. 2 ZPO—shows that using a copyrighted photograph as a template for an AI-generated image does not automatically constitute copyright infringement. The mere inclusion of the original photograph in the creation process is not decisive. Rather, the decisive question is whether individual creative elements of the original photograph have been recognisably incorporated into the AI-generated image.
Copyright protects the specific personal form of a work, but not its underlying subject matter or a general visual concept. Merely adopting a subject is therefore generally insufficient to establish copyright infringement.
Human Creative Influence Determines Copyright Protection for AI Images
At the same time, the OLG Düsseldorf provides further clarification of the requirements under which AI-generated images may themselves enjoy copyright protection.
Human creative influence is required through which the user’s personality is reflected in the specific form of the result. The number of prompts entered or the frequency of subsequent changes is not the sole determining factor. Rather, the decisive question is whether the human user makes independent creative choices and thereby shapes the specific form of the image.
Merely entering general instructions or selecting an image generated by the AI is insufficient. Anyone seeking copyright protection for an AI-generated image must therefore be able to provide a comprehensible explanation of their own creative contribution.
Copyright Eligibility of the AI Image and Infringement of Third-Party Copyright Must Be Assessed Separately
It is particularly noteworthy that the Oberlandesgericht addresses two legally independent questions.
First, it must be examined whether the AI-generated image itself enjoys copyright protection. This requires the author’s own intellectual creation based on sufficient human creative choices.
Separately, it must be assessed whether the creation and publication of the AI-generated image infringes rights in the original photograph. Even if the new image does not enjoy copyright protection of its own, a separate examination of a potential infringement of rights in the source photograph remains necessary.
The fact that the AI-generated result is ineligible for protection therefore does not automatically mean that its use is lawful. Conversely, using a protected photograph as a template does not necessarily mean that an infringing reproduction has occurred.
Significance for Businesses and Users of AI Applications
In practice, the decision makes clear that the copyright assessment of AI-generated images always requires an examination of the specific individual case. Businesses and users of generative AI should pay particular attention to whether protected creative elements are incorporated when third-party photographs are used.
At the same time, it is advisable to document the user’s own human creative contribution to the creation of AI images in a comprehensible manner. This may include, in particular, individual prompts, specific creative instructions, settings for the generation process and documented creative editing steps.
The OLG Düsseldorf decision therefore demonstrates that, when using generative AI, both the rights in the source materials used and the requirements for potential copyright protection of the resulting output must be carefully examined.
MTR Legal Rechtsanwälte advises on copyright law and other areas of industrial property and IP law. Further information is available at legal advice on copyright law.
