The use of artificial intelligence (AI) for the creation of web content is booming with tools such as ChatGPT, Midjourney, Gemini, Neuroflash, DALL-E or Adobe Firefly. However, this gives rise to many questions and legal uncertainties, particularly in the area of artificial intelligence and copyright. Our article explains who the author of AI-generated texts, images and videos is, how you can become the author of such content yourself and whether you can safely use AI-generated content on your website, blog and social media.
As a website operator, web designer or content creator, there are numerous opportunities to use AI-driven content online. For example, you can use AI to create advertising copy, social media posts, newsletters, images, graphics, logos or even videos.
Why is AI capable of creating “creative” content?
Generative AI works through machine learning, which uses large amounts of data to train the AI. This allows it to recognize patterns and generate new content. However, these data sets often consist of copyrighted works and are therefore essentially the intellectual property of numerous authors, artists, web designers or content creators.
One of the most exciting questions related to generative AI and copyright concerns authorship: Is it the company behind the AI? The programmer or trainer of the AI? The authors of the training data, i.e. the human (keyword: creation theory)? The AI itself? Or is it you as the user of the generative AI?
To answer this question, it is important to understand when copyright protection actually applies. This is very similar in all European legal systems and in German copyright law it concerns Section 2 Paragraph 2 of the Copyright Act. According to this legislative provision, content is protected by copyright if and to the extent that it represents a personal intellectual creation and this reaches a certain level of creativity, usually determined by case law in individual cases. The most recent prominent example in which an intellectual-individual creation was affirmed but the level of creativity required to enjoy copyright protection was denied is the case of the BIRKENSTOCK sandals (BGH judgment of February 20, 2025 - I ZR 16/24). With regard to the question of AI authorship, this basically means that the content must have been created by a human and must express his thoughts or feelings in an individual way. The crucial question now is whether content generated by an AI meets these criteria.
Programmer: No, the programmer is not fundamentally the creator. In the development process of the AI, he would have to have made individual design options that the user of the AI cannot influence. However, this does not apply to common AI systems.
Companies behind the AI: No, a company is not a person and therefore cannot be considered an author under German copyright law. It could only acquire ownership of intellectual property through the instrument of contract design (e.g. through equivalent IP clauses in employment or freelance contracts).
AI trainer: No, the AI trainer makes a selection from texts and images, but does not design every single image or text. Therefore, the trainer cannot be considered the author.
Author of the training data: Controversial, but although the works of the authors are used as a basis, they do not create their own new intellectual creation, so that copyright does not necessarily perpetuate itself in the work of the created creation.
Artificial intelligence: No, since an AI is not a human, it cannot be recognized as an author under German copyright law. Only human creations are protected by copyright.
User/Prompter: No, the user or prompter of the AI cannot be considered the author either. Simply entering a prompt (instruction to the AI) is not enough to be considered the author of the generated content. The prompt only represents an idea and the user does not know exactly how the implementation will look. The user therefore does not make their own creative decisions.
Important NOTE:
According to current case law, AI-generated texts, images and videos are not protected by copyright and are considered to be in the public domain, although in practice a careful distinction must be made between pure AI works and human-assisted works.
It sounds tempting: Since AI-generated content is often assumed to lack copyright protection, the following risks must nevertheless be considered when using it royalty-free on your own websites or for other business purposes:
Liability: You are responsible for all AI-generated content that you use on your website. If, for example, a job advertisement created by the AI violates the General Equal Treatment Act, you are liable for it.
Risk of copyright infringement: If AI-generated texts or images resemble existing copyrighted works, this may constitute a copyright infringement. For example, if you have AI create a company logo that resembles an existing logo, this may result in warnings and claims for damages.
Others could use the same content: Because AI content is in the public domain, another company could enter the same prompt and get the same image or text, and other companies could use the same product image as you.
Practical tip:
In order to avoid warnings and claims for damages and to safely navigate the uncertainties in a business world that is increasingly dominated by AI, you should have AI-generated content thoroughly checked by an expert and suitable tools - if only because of the risk of your personal liability. For example, you can search for logos in the DPMA register, perform a reverse search for images on Google or use a plagiarism scanner. It is advisable to customize your AI products or only use them as a source of inspiration. Always document your steps and research clearly and consult a lawyer if in doubt.
There is currently no general labeling requirement for AI-generated content. However, the AI Regulation, which came into force on February 2, 2025, stipulates that providers of AI content must clearly label it so that it can be recognized as such. As a user, you yourself are only obliged to label AI-generated content from August 2, 2026 if it is deep fakes or texts on topics of public interest.
But be careful! There may already be a labeling requirement for AI content on social media platforms. On Instagram, Facebook (Meat), TikTok and YouTube, corresponding regulations are already in force through corresponding specifications in the terms of use of the platform operator and are therefore binding in order to operate on the platforms without disruption.
As already explained, a personal intellectual creation is necessary for content to be protected by copyright. Your creative contribution and a certain level of creativity to the end result play a decisive role.
For example, if you change the arrangement of elements, adjust colors, or add new image elements, you could be considered the author of an image. However, if you have an advertising text created by AI and only change one word, this is not enough to be recognized as the author.
The more you modify the AI-generated content, the more likely you are to be considered the author. However, there is no absolute certainty. Even a very detailed prompt is not enough to claim copyright, as the content provided by the AI is unpredictable and random.
Important:
There is currently no clear case law or legal regulation in Germany regarding the authorship of AI-generated content. The planned AI regulation also does not contain any provisions in this regard. Therefore, it must be decided individually in each case whether a human has had enough influence on a text, image or video to be considered the author. If you want to adapt AI content in order to be considered the author, you should document these changes well.
If you want to ensure that you are considered the author, we recommend that you use the AI only as a source of inspiration and create the final product entirely yourself - and here too, to prevent later difficulties in proving it: document it.
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