Use of the Same Motif in an AI-Generated Image Does Not Infringe Copyright

Copyright Act, Secs. 23(1), second sentence, and 72 – Underwater Dog Photos 1. Only a newly created work can constitute a free adaptation. In the case of AI-generated products, there can only be a work in the sense of a personal intellectual creation if the product, despite the software-controlled process, is the result of creative decisions by the human user. 2. The burden of proof and of establishing a prima facie case lies with the party invoking the status of a work. 3. In order to establish a copyright infringement through reproduction, the court must first find an unauthorised use of the creative elements of the protected work, and second determine whether those elements, that is to say elements that are the expression of choices reflecting the author's personality, have been reproduced in a recognisable manner in the allegedly infringing subject matter. 4. The comparison of the overall impression is not decisive, as this criterion is intended to apply solely to the protection of designs.