Ruling in Prague: AI-generated image can be freely used by anyone

In a recent ruling, the Municipal Court of Prague decided that an image created using an artificial intelligence (AI) system cannot be protected by copyright. This is in line with the current legal line in the EU, according to which only a human creative creator can claim copyright to their work. At the same time, however, the judges also made it clear that anyone who publishes images generated with the help of AI cannot invoke copyright law to prevent the copying and commercial exploitation of such machine-generated products by third parties.

In a recent ruling, the Municipal Court of Prague decided that an image created using an artificial intelligence (AI) system cannot be protected by copyright. This aligns with the current legal position in the EU, according to which only a human creator can claim copyright for their work. However, the judges also clarified that anyone who publishes AI-generated images cannot invoke copyright law to prevent third parties from copying and commercially exploiting such machine-generated products.

For Winfried Bullinger from the law firm CMS Germany, the Prague ruling, which was reported on by the specialist blog IPKat, addresses an important point that has been little discussed to date. "If you use AI, you have to be aware that this does not come with an exclusive right as with a work created by a human being," the lawyer explains to heise online. Under continental European law, a creator of flesh and blood is granted an exclusive right of exploitation for up to 70 years after their death. Even if, for example, an entrepreneur commissions a person to paint a picture and pays for it, it ultimately belongs to him and he can protect it against copying. When using AI tools, on the other hand, "I have to put up with the fact that others also use these images".

For Winfried Bullinger from the law firm CMS Germany, the Prague ruling, reported by the specialist blog IPKat, addresses an important yet under-discussed point. "If you use AI, you must be aware that it doesn't come with the exclusive rights associated with human-created works," the lawyer explained to heise online. Under continental European law, a human creator is granted exclusive exploitation rights for up to 70 years after their death. Even if an entrepreneur commissions someone to paint a picture and pays for it, the rights ultimately belong to the creator, who can protect it against copying. When using AI tools, however, "I have to accept that others can also use these images."

In the Prague case, the plaintiff had the DALL-E program from OpenAI generate an image intended for their website. The prompt used was: "Create a visual representation of two parties signing a business contract in a formal setting, for example in a conference room or in the office of a law firm in Prague". The hands were to be shown in detail. The defendant, a local law firm, copied the published image and used it on their own website. The plaintiff pleaded copyright infringement, arguing that they were responsible for the image's use, and applied for an interim injunction.

Image creation with prompts is like commissioned work

The court first determined that the Czech Copyright Act, particularly Article 40, grants the author of a work the right to prohibit unauthorized exploitation. However, Article 5(1) states that the author is "the natural person who created the work". It was undisputed that DALL-E had created the image. The plaintiff argued that the system generated the image based on her specific instructions, and therefore she owned the copyright.

According to the judges, the plaintiff was unable to substantiate this claim with evidence. She was therefore not legally entitled to claim injunctive relief. Generally, an AI-created image is not a copyrighted work and certainly not one that belongs to or was created by the plaintiff.

Bullinger considers the decision to be understandable. The expert compares prompting to ordering commissioned work from a painter, whereby the patron also does not acquire any copyright. Human prompting could, at best, be protected as a linguistic work, but not the products created with such computer commands. Additionally, under such circumstances, there is a media leap from the spoken word to the pictorial testimony. These are two different forms of expression, so one can only speak of inspiration from one instance to the other.

When do additional adaptations cross the protection threshold?

The case also raises the question of the extent to which human involvement could reach the level of creation required for copyright protection. In principle, it is also possible to obtain protection for adaptations of another person's work, Bullinger explains. However, it is not enough to simply tweak the contrasts with Photoshop, for example. If, for example, an editor makes montages, restructures colors and intervenes creatively in the content, the threshold could be exceeded.

In this respect, Bullinger's assessment of the "Théâtre D'opéra Spatial" case differs somewhat from that of the US Copyright Office. A man named Jason Allen submitted the image, which was basically generated using the Midjourney AI system, to an art fair in Colorado and won a competition with it in 2022. However, he was unable to convince the Copyright Office examiners that his refinements of the original AI output with 624 additional prompts and extensive revisions with Photoshop provided the necessary level of creativity. They rejected Allen's application to protect the image in its entirety.

In Germany, a work of art is protected as soon as it is created, Bullinger points out. In other words, there is no instance before the courts that decides whether a work is worthy of protection. In the USA, on the other hand, the Copyright Office develops relevant standards, whereby the lawyers there are very restrictive and tend to interpret the concept of a work even more strictly than in Europe. In the case of "Théâtre D'opéra Spatial", the changes could be seen as an adaptation according to the European understanding and potentially be granted copyright protection. The US decision was ultimately more of a political one. In general, however, the AI-generated original product would not be protected on the old continent either, only the additional adaptation.

(mki)