Can AI-generated output be protected by copyright?

On 2 April 2026, the Düsseldorf Regional Court in Germany issued a ruling on copyright issues relating to generative AI. The ruling addressed two key legal questions:

1. can AI-generated output be protected by copyright
2. when does AI-generated output infringe the work on which it is based?

This article will examine the decision of this German Court and explain its relevance and potential impact. Before discussing the Court’s ruling on these copyright-related questions, a brief summary of the facts and the outcome of the case is provided below.

 

Facts of the case

The case concerned an underwater photograph of a dog snapping at a red toy, taken by an animal photographer. A former business partner uploaded this photograph into an AI system and used it to generate a new image. Although this image also shows a dog underwater with a red toy, the output differs from the original photograph. For instance, the dog’s body is more visible, additional elements such as bubbles and an ocean floor have been added, and the AI-generated image has a cartoon-like appearance, whereas the original was a real photograph.

 

Outcome of the case

In this case, it was ruled that the AI-generated image of the dog underwater did not infringe the copyright of the original photograph on which the image was based, and also that the AI-generated image did not enjoy copyright protection.

 

Relevance in the Netherlands

This ruling is also relevant to Dutch copyright law, as the Düsseldorf Regional Court, in determining whether the AI-generated image enjoys copyright protection, relied on the ‘originality test’ from well-established case law of the Court of Justice of the European Union. This is relevant because the Dutch Copyright Act (Auteurswet) is largely based on European legislation and regulations and must therefore be interpreted in line with the case law of the Court of Justice of the European Union. The ‘originality test’ developed therein is therefore applied not only in Germany, but also in the Netherlands and all other Member States of the European Union.

 

Copyright protection (originality test)

According to the Düsseldorf Regional Court, the question of whether AI output can be protected by copyright under European copyright law depends on whether it constitutes a ‘work’ for the purposes of copyright. Under established European case law, this is the case if the so-called ‘originality test’ is met. For copyright protection, the work must have an ‘individual, original character’ and bear the ‘personal stamp of the creator’.

 

In order to meet these criteria, the creator’s personality must be reflected through the expression of free creative choices. According to other established case law of the Court of Justice of the European Union, this will, in general, not be the case if choices are solely determined by technical considerations, rules or other constraints on creative freedom (see, inter alia, the judgments, CJEU, 12 September 2019, ECLI:EU:C:2019:721 (Cofemel) and CJEU, 4 December 2025, ECLI:EU:C:2025:941 (Mio/Konektra).

 

Application of the ‘originality test’ to AI output

The Court then applies the originality test to AI-generated output. The judgment shows that AI-generated products (such as images) are eligible for copyright protection if sufficient human creative influence is exercised on the design of the specific work itself during the generation process, thereby giving the generated output the ‘personal stamp’ of the creator. Examples of this are also given in the ruling, e.g. sufficient individual settings during generation, possibly in combination with a selection process. Merely selecting a result from a series of generated results is regarded as insufficient creative influence in this context. This line of reasoning is also extended to the input of prompts into an AI system. Ultimately, according to the Court, creative decisions must not be left to the AI, and general, open-ended instructions to an AI will not result in copyright-protected output.

 

In this case, it was ruled that the generated image of the cartoon-like dog based on the photograph was not protected by copyright, because the defendant had not explained which creative decisions he had taken in the process of generating the image.

 

No copyright infringement of the original work

The Court then ruled that there was no infringing reproduction of the photographic work. Even where a reproduction or communication to the public concerns a relatively small part of the work, there may still be an infringement of copyright. According to the established case law of the Court of Justice of the European Union, this is only possible if this smaller part of the work reflects the author’s own intellectual creation and these elements have subsequently been reproduced in the infringing work without authorisation and in a recognisable manner; see judgment: CJEU, 4 December 2025, ECLI:EU:C:2025:941 (Mio/Konektra).

 

The Düsseldorf Regional Court ruled that the elements of the original photographic work that reflected the photographer’s creative choices consisted, among other things, of: ‘the perspective’, ‘the lighting’, ‘focus settings’ and ‘composition’. Those parts would therefore be protected by copyright.

 

A “theme” or “motif” is not covered by copyright protection, which is linked to the legal principle that an idea is not protected, but only its concrete creative execution by the author. The motif of the photograph in this case is: “a dog snapping at a red toy underwater”. The Regional Court ruled that this motif is not protected by copyright.

 

This ruling therefore clearly outlines which elements of the photograph are protected by copyright and which are not. The ruling then sets out which elements are actually reproduced in the AI-generated product.

 

According to the court, the similarities between the two images relate exclusively to the motif of a dog reaching for a red toy underwater. The photographer’s creative choices, on the other hand, were not recognisably reproduced in the AI image. In this regard, the Düsseldorf Regional Court points out that the original photograph mainly shows the dog’s head and the toy, with the chosen perspectives and blurring creating a realistic and dynamic appearance.

 

The AI-generated image, by contrast, has a more cartoon-like appearance, shows the dog’s entire body and depicts the dog reaching for the toy not only with its mouth but also with its front paws. According to the Court, this means that the elements resulting from the photographer’s personal creative choices have not been reproduced. Only elements in the public domain have been reproduced, namely the subject matter, which, according to the Court, is permitted.

 

Implications of this ruling

Firstly, what is striking about this ruling is that it leaves the door open for copyright protection of AI-generated output. This is because the German Court does not state that an AI-generated image cannot, under any circumstances, enjoy copyright protection, but instead systematically examines the requirements for copyright protection in the EU, whilst also providing examples of when the use of an AI system might or might not be sufficiently creative. Similar examples had already been given in an earlier ruling from Germany (see ruling by the Munich Regional Court, Final Judgment of 13 February 2026 – 142 C 9786/25). It remains to be seen how this case law will develop within the EU. At the time of publication of this article, there have yet to be cases within the EU in which it has been ruled that AI-generated output enjoys copyright protection. If this line of case law continues, the discussion appears to be shifting increasingly from the question of whether AI output can be protected by copyright to the question of under what circumstances this is the case. However, it remains to be seen whether this will be desirable and what consequences it will have.

 

Conclusion

In this judgment, the Düsseldorf Regional Court applies the established case law of the Court of Justice of the European Union on copyright to AI output. It is particularly striking that the door remains open for copyright protection of AI-generated products, as the Court directly links this protection to the EU ‘originality test’ and human creative influence on the final output.

Furthermore, the ruling reaffirms a fundamental principle of copyright law: it is not an idea, theme or motif that is protected, but solely the concrete creative expression thereof. The ruling thus offers an interesting insight into how existing copyright standards are applied to AI-generated products.

 

Questions?

Do you have any questions about copyright and AI? Please contact our IT lawyers. They will be happy to assist you.