FAQ on Legal Issues of DALL-E Bildgenerierung
by Prof Dr. Thomas Wilmer
For a detailed legal analysis, please see the publications listed under "Publications". For individual legal advice please contact a law firm. We do not accept any liability for the correctness and actuality of the information provided. For questions from students of the h_da, the author as data protection officer is responsible for data protection issues and the respective lecturers for questions of use in examinations.
1. Who has a copyright over the images generated by DALL-E?
According to German law (§ 2 UrhG, the German Act on Copyright and Related Rights) only a HUMAN creation is protected by copyright, so that neither the operators of DALL-E nor the user as the person who had the image generated by a so-called "prompt" is the author of the images. Nevertheless, the operator of DALL-E, as the one offering the service, can determine within certain limits the purposes for which the images are used.
2. Can one have a copyright over a prompt?
Prompts are only utility texts and have no quality of their own as a spoken or written work, so that even longer prompts are generally not susceptible to copyright protection. The relationship between prompt and work is also not protectable, since the AI does not provide a compelling repeatable result. The situation may be different if the AI is exceptionally used by artists as a tool with very concrete individual specifications (which go beyond prompts, i.e. concern programming or interventions in the database) or in the artist's own style known to the AI.
3. Can AI-generated images infringe the rights of third parties?
If the AI is given the instruction to imitate an existing image and then an image is produced that closely resembles the original, this could constitute an unauthorised adaptation of the original that infringes on the rights of the creators of the originals. If an object is imitated in a prompt in the known style of an existing artist, on the other hand, this will usually be permissible.
In addition, there may be an infringement of the personal rights of third parties if images of natural persons are to be created (Sections 22, 23 KUG, the German Artistic Copyright Act), with exceptions for persons of contemporary history.
Furthermore, fake pictures that distort real facts can be punishable or illegal depending on their content. This applies in particular to fabricating false circumstances in a personal context. In these cases, there is also no exception for famous persons (as long as the image is not recognisably faked and also does not show any punishable content).
Operators of an AI system that generates or manipulates image, sound or video content that is a deepfake must disclose that the content has been artificially generated or manipulated in accordance with Article 50 (4) of the AI Act.
However, if other people's databases are taken over or systematically read without consent, OpenAI could be in breach of database rights under §§ 87a, 87b UrhG (the German Act on Copyright and Related Rights). However, there are as of yet no available data on this matter.
4. May I use the images generated by DALL-E in my profession to save time?
Such use should in any case be disclosed to the employer or client. If one is paid for the creation of images, concealing the use of DALL-E could, at worst, constitute fraud against the person who paid for the personal creation of an image. Furthermore, employers or contractors could suffer disadvantages if the images are not legally protectable or even infringe the rights of third parties.