Using AI with legal certainty: Companies should observe these legal regulations

With DALL-E, ChatGPT, Midjourney and the like, artificial intelligence has now arrived in the everyday lives of private individuals and companies alike. With the help of these tools, hundreds of millions of users are already generating SEO texts or AI art every day - and more and more companies are thinking about using AI. However, this rapid development also presents companies with new challenges, including from a legal perspective.

The big catch: there are currently no binding rules for dealing with AI and the results it generates. So what is the current state of AI law in Germany? In this article, we take a look at what you can currently use as a guide when using AI tools and which legal stumbling blocks you should avoid if you use AI commercially.

Who is the author of AI-generated images and texts?

For you as an online retailer, there are countless ways to use AI content online. For example, you can have an AI create social media posts, newsletters, images, graphics, advertising texts, logos or videos.

However, this quickly raises the question of copyright for AI content. Is it your company? Or is it the artificial intelligence?

To answer this question, it is best to take a step back to understand when copyright protection exists in the first place. According to Section 2 (2) UrhG, content is protected by copyright if it is a personal intellectual creation. This means that the content must be created by a person and represent their thoughts or feelings in an individual way. The question now, however, is whether content created by an AI can fulfill these criteria at all.

The following can be deduced from this for copyright in AI content:

• The programmer of the AI cannot be the author, as he would have to have made individual design decisions in the process of programming for this to be the case. This is not the case with common AI systems.

• The company behind the AI is also out of the question. A company is not a human being - so it cannot be an author under German copyright law.

• Although the AI trainer makes a preselection from images and texts, it does not design an image or text in detail and is therefore also out of the question.

• The artificial intelligence itself is not human and therefore cannot be the author.

• The user/prompter of the AI is also not an author. Simply entering a prompt (instruction to the AI) is not sufficient to be considered the author of the AI-generated content.

As you can see, none of the possible parties involved can be considered authors. This means that AI-generated texts, images and videos are not protected by copyright and are therefore in the public domain.

Trademark law and AI content

If you use AI content commercially, this may also result in trademark infringements. In Germany, trademark protection requires that the protected term or sign is registered as a trademark in an official register. If content created by an AI is too similar to a registered trademark and leads to a likelihood of confusion among market participants, a trademark infringement is conceivable.

It is therefore best to carry out a comprehensive trademark check (or have one carried out) before you use AI-generated images commercially or use other content for your products, for example. As a user of AI programs, you must always expect the AI to make mistakes and bear the risk yourself.

Can you use and sell AI-generated images?

Images created by AI image generators are images like any other. This means that their rights of use and exploitation must be clarified before they are used. In legal terms, AI-generated images must therefore be treated in the same way as images created by humans.

However, there are some special features of AI images that make rights clearance more difficult. As already mentioned in the previous paragraph, the lack of copyright regulations for AI content is an important point. It is therefore generally assumed that AI images are not subject to copyright protection.

This offers you both advantages and disadvantages if you want to create and use AI images.

If images are not eligible for protection, you do not have to comply with various obligations under the Copyright Act (UrhG) towards AI platforms or the creators of AI content. For example, when using AI-generated images, you do not have to name an author, as stipulated in Section 13 UrhG (as this does not exist either, as mentioned above).

However, an important disadvantage is the lack of exclusivity of the images. This means that your competitors can theoretically edit your AI-generated images and use them for their communication. This is because there is no possibility of acquiring licenses for AI images without copyright protection.

This means that you can take and reuse AI-generated images completely legally. You can also sell the AI images - but anyone is also free to copy them free of charge.

Despite the lack of regulations, you can follow these tips to stay on the safe side:

• Refrain from using AI images with people and limit yourself to landscapes or atmospheric images. Otherwise there is always a risk that the AI images will resemble real people, actors or cartoon characters.

• Due to the lack of exclusivity, it is advisable not to use the creations of AI tools for brand campaigns or similar where exclusivity is important. If you want to do your brand a favor, you should rather use designs and photos by human professionals in this case.

• All AI image generators have terms of use that you need to be aware of. You should therefore look at what applies in terms of licenses and what rights are granted to you as a user. In most cases, the terms of use of most AI programs are not particularly productive and many points are still legally unclear.

Which AI tools can you use to create images?

AI image generators are AIs that can create new images or edit existing ones. To do this, the AI tool analyzes large amounts of data, recognizes patterns and generates unique visual works on this basis. The application of these tools is diverse and ranges from realistic portraits to abstract works of art.

Below we briefly present three AI generators that you can use to create images.

DALL-E 3

The successor to DALL-E 2 is an AI image generator from OpenAI (the developer of ChatGPT) and has been available since October 2023.

In general, DALL-E can be used with three different tools.

1. With the Bing Image Creator you can create AI images for free. Here you receive 100 credits per month (equivalent to approx. 400 images).

2. You can use DALL-E 3 within Microsoft Copilot (formerly Bing Chat). As with Image Creator, the creation of AI images is free of charge.

3. DALL-E 3 can also be used within ChatGPT. However, image generation is not free here, but requires ChatGPT Plus for $20 per month.

Compared to its predecessor, DALL-E 3 understands text better and generates more accurate and detailed images. The only disadvantage is that it is unfortunately not so suitable for photorealistic AI images.

Adobe Firefly

Adobe Firefly is an AI image generator that is integrated into Photoshop. This tool enables you to create realistic photo objects. To do this, the artificial intelligence uses Adobe's own image database Adobe Stock and reproduces existing objects there. The tool is aimed more at Photoshop users who need AI functions such as adding objects or generative filling of empty image areas. However, Firefly is not suitable for creating completely new AI images from scratch.

Costs:

• Creative Cloud subscribers can use the AI features at no additional cost.

Dreamlike

The Dreamlike image generator creates photorealistic images from uploaded source images and text input. You can use the AI very well for surreal or fantastic images, for example. Dreamlike focuses on creative and original image design.

Costs:

• Free in the basic version (commercial use of the AI images included). You have 24 credits per day to use for AI-generated images.

• After that, there are three subscription models with 3,000, 12,000 and 30,000 credits for 12, 24 and 48 US dollars per month.

Can you publish AI-generated texts?

Generally speaking, you can use and publish AI-generated texts. OpenAI, the company behind ChatGPT, for example, allows users to publish and sell the generated texts. According to the terms of use, the generated text belongs to the users and may be distributed, sold and marketed by them. It does not matter whether you pay ChatGPT for this or not.

But using it without verification also involves risks. As a user of the AI, you do not know what content has been fed into the artificial intelligence and whether the rights of others have been infringed. Therefore, you also do not know whether the output of the AI tool is very similar or even identical to a protected work. In practice, it is therefore advisable to weigh up the risks.

You should keep the following in mind:

• If you accept AI content without checking it, this may constitute a breach of the user's duty of care.

• Until now, there has been no labeling requirement for AI-generated content. However, this will change in the future. In the near future, all AI-generated content will have to be labeled as such. New AI laws will come into force with the EU AI Act. The new AI law will apply in the EU as early as June 2024 - once the Council of the European Union has given its full approval, the regulation will generally come into force 24 months later (i.e. probably in 2026). You can find out exactly which laws are included on the EU Artificial Intelligence Act page.

Which AI tools can you use to create AI texts?

AI text generators are currently on everyone's lips. More and more website operators are having their texts written by an AI. What's more, the selection of text generators is now very large. In this section, we present three text generators that can be used to create texts.

ChatGPT

OpenAI's advanced AI text generator has been trained with a variety of web texts and is capable of generating human-like texts in natural language. You can use the tool for various tasks, such as content creation or answering questions.

Costs:

• After registration, you can use ChatGPT free of charge.

You can currently use ChatGPT Plus for approx. 23.80 USD (approx. 22 euros) per month. Here you have more functions at your disposal (for example, a larger data set of information and more natural language).

Neuroflash

The text and image generator is able to generate high-quality content in seven different languages. SEO optimization and plagiarism checking are also possible. If you are looking to create content on an international level, Neuroflash is a suitable solution.

Costs:

• You can use the free version of the tool for smaller projects.

• If you need the tool on a larger scale, there are 3 other subscription models available, ranging in price from 30 euros to 300 euros.

Shopify Magic

In Shopify itself, you also benefit from an AI tool that can support you with text creation. Shopify Magic uses information provided by you to generate suggestions for content such as product descriptions, blog posts or emails.

All functions are currently available in English. In addition, there are functions (e.g. product descriptions) that are also available in German. Blog posts, for example, can currently only be generated in English.

Costs:

• The Shopify Magic tools are available for free, regardless of your Shopify subscription. However, access and availability of certain features may vary.

Conclusion

AI law still has some gray areas at the moment - especially when it comes to copyright for AI content. However, it can be assumed that the legal regulations on the use of artificial intelligence will be further specified and adapted in the coming years.

The use of AI offers many opportunities - but you should check all content carefully before publishing it. It is always advisable to give your content a personal touch by customizing the AI content. If you use AI applications prudently, you will benefit from the advantages of this technology and avoid legal pitfalls.