For the first time in history, the Czech courts have directly dealt with the issue of copyright protection for content created with the help of generative AI.

In the case, the plaintiff generated an image using the program DALL-E. The prompt was to “Create a visual representation of two parties signing a business contract in a formal setting, such as a conference room or a law firm office in Prague. Show only hands.” The plaintiff subsequently placed the generated image on their website. The defendant obtained it from the plaintiff’s website and then placed it on their own. The plaintiff objected to this and, on the basis that they were the author of the generated image, demanded that it be withdrawn and no longer distributed without their consent as author.

The key issues in the case were:

• whether an AI-generated image was a work eligible for copyright protection; and
• whether the person who created the prompt based on which the AI ​​generated the image could be considered the author of that image for the purpose of copyright law.

The Municipal Court in Prague held that:

• only a natural person can be the author of a copyrighted work. Since an AI is not a natural person, an AI cannot be an author;
• a work of authorship must be the unique result of the creative activity of a natural person. Unless the creator can demonstrate that the generated image is the result of their unique creative contribution, it is not a work of authorship; and
• where there is a prompt, one can potentially talk about the ‘theme’ of a work, however this ‘theme’ is not in itself eligible for copyright protection.

Ultimately, the court concluded that the plaintiff had no copyright in the generated image and no control over its further distribution. Likewise, the image could not be licensed or further traded as intangible property.

Despite this, we believe that in the case of a more sophisticated prompt, it might be possible for an AI-generated image to enjoy copyright protection if the image was mostly the result of the original prompt, this prompt being a unique creative activity of the author. In the event of a dispute, however, it would be necessary to prove this, such as with a video recording of the screen showing the input of the prompt.

The court’s decision in this case is now effective, and no appeal has been filed. In this initial period, it is likely that the courts will differ in their approach in similar cases, and we will have to wait for the jurisprudence of the higher courts to provide some guidance and unification. For now, we will continue to monitor developments in this vibrant field and bring you regular updates.

For more information, please contact Tomáš Ščerba and Jaroslav Fořt or your regular DLA Piper contact.