According to the current interpretation of copyright law in Germany, images created with generative AI models such as Stable Diffusion or Midjourney do not have copyright protection. The argumentation here follows the idea that the computational result follows deterministically from a text input (prompt) and thus does not represent a direct creative process of a human. Longer prompts, i.e. the text itself, on the other hand, are controversial and could perhaps be protected by copyright.
Also because the output at the same time does not (yet?) lead to a really plannable result, a human authorship cannot be substantiated. It is still disputed whether authorship might not arise in the process of selection and trial and error.
And so much remains in flux. Both in terms of the predictability of the output of the models - and which interpretations will prevail or manifest themselves in current case law.
The U.S. Copyright Office has now also published an official position on the state of affairs. Specifically, it is about whether and if so, how an AI work can be protected with a copyright - which is something else again than the German copyright law.
But it is not possible to judge this too clearly, even after this statement. We take the liberty of translating an excerpt of the review:
"In the case of works containing AI-generated material, the Office will examine whether the AI&s contributions are the result of "mechanical reproduction" or whether it is the author&s "original mental conception to which he has given a visible form."
The answer depends on the circumstances, particularly how the AI tool works and how it was used to create the final work. This is necessarily a question of individual cases."
From this we interpret: In fact, it is the documentation of the creation process that becomes most critical to the copyright grant. A long prompt alone, on the other hand, has per se no great chance of establishing a copyright in the USA.
In practice, everything can become even more complex as soon as you throw post-processing or inpainting into the mix. Or even simpler. Because when AI inpainting into a protected work, copyright should still apply to the protected work.
In turn, even a clearly noticeable manual post-processing of an AI work (such as retouching including color correction) should be able to establish authorship of the newly created work. But of course, this is just our opinion and not legal advice.
If you want to read more on the topic: Here you can find a good overview of the current interpretation of copyright law in Germany.
Bild zur Newsmeldung: