Oh boy, I’m going to have some fun with this one. A German court has ruled against a photographer who (rightly, in my opinion) sued when her original photograph was uploaded to a GenAI and used to generate an AI-slop cartoon that looks incredibly similar.
In relation to the case, German outlet MIR (Medien Internet und Recht, or 'Media Internet and Law') has published the Higher Regional Court of Düsseldorf’s guiding principles, of which the first paragraph states:
“The scope of protection for a photographic work is generally limited to the choice of image composition, perspective, lighting, and the sharpness or blur achieved through the correct combination of aperture and exposure time. The subject matter and motif are generally not eligible for protection.”
Ultimately, I do understand this. After all, artists and illustrators frequently use reference images that they don’t own. But where I personally think the court ruling falls apart is that copyright law predates the genAI boom. And genAI is a completely different ballgame.
We’re not talking about a human interpreting an image; we’re talking about the actual photograph being fed directly into an AI. Regardless of the final outcome or how much human involvement there was regarding prompts, the AI is given free rein to process the original work.
You can’t take a copyrighted image and display it on a website for no reason, so why can you take an original image and ram it through the digital embodiment of a meat mincer to be churned into AI slop? Probably because the AI industry doesn’t want to admit that scraping and processing creative content is completely unethical…
This is a fine example of how content credentials just aren’t enough. I want to see a system implemented where images are granted and / or GenAI platforms feature built-in protections, so that an original work that the user doesn’t own cannot be fed into an AI generator in the first place.
Let’s take Andy Warhol, for example. He did not seek permission to use Gene Kornman’s famous photograph of Marilyn Monroe for his Marilyn Diptych and you can certainly argue that he should have done. But you can also argue that Kornman’s original photograph became much more well known because of Warhol's genius.
The same can be said when a musical artist covers another artist’s song; crucially, the paper trail is there. And that’s one of my biggest gripes with GenAI; there’s no paper trail. It’s a deceitful medium that presents unoriginal work as original. Frankly, I applaud and admire the few creatives who are actually taking a stand.
I’ll hold my hands up and admit that I’m not sure I could be bothered to go through the courts over an issue such as this, especially when the outcome is likely going to be unfavorable. But just going through the process is fighting back; it raises awareness and gets people talking.
I can’t help but wonder what the outcome would have been if the original image was a fictional character like Mickey Mouse… Why should a real-world image created by a talented photographer be any different?
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I grew up idolizing George Lucas, but his passive stance on AI is deeply wrong. “AI dilutes what is impressive” – Robert Irwin hits the nail on the head when it comes to artificial intelligence in wildlife photography. How on earth did this obvious AI image get past the judges and win a photography competition?
