I. Human Creativity
Generative artificial intelligence produces, within seconds, texts, images, logos, and entire editorial pieces that can scarcely be distinguished, on their face, from works of human authorship. This raises a legal question of growing economic urgency: whether, and under what conditions, such output enjoys copyright protection. The answer determines not merely the exploitability of individual works, but the competitive position of entire industries. Anyone who invests in an AI-generated logo, an automatically produced product description, or an algorithmically drafted newspaper article, without a sufficient underlying human creative contribution, risks finding that competitors are free to copy that content without restriction.
Building on the foundational shift in the United States, on German lower-court case law, and on the EU-law grounding of the concept of a “work” through the Court of Justice of the European Union (CJEU) — all of which anchor protection to the requirement of human creativity — the following thesis emerges for Austrian law: the absence of human authorship in purely AI-generated content opens up a substantial freedom to imitate that has, in its practical consequences, been underestimated to date — particularly with respect to logos, advertising copy, and journalistic content.
II. The Starting Point: Thaler v. Perlmutter (USA)
The starting point of the international debate is the case of computer scientist Stephen Thaler, who used his AI system “Creativity Machine” to autonomously generate the visual work A Recent Entrance to Paradise and applied to the U.S. Copyright Office to register it, naming the AI as sole author. Both the Copyright Office and, subsequently, the courts refused registration. The U.S. Court of Appeals for the District of Columbia Circuit affirmed on March 18, 2025, in its final ruling below the Supreme Court, that the Copyright Act requires human authorship as a condition of protectability in every case; a machine may at most be a tool, but can never be an author.¹
The Supreme Court denied Thaler’s petition for a writ of certiorari on March 2, 2026 — not, as sometimes reported, in October 2025, which was merely the date the petition was filed² — so the decision is now final. Although this ruling has no binding effect in the European legal sphere, it forms, as will be shown, the structural opening of a remarkably uniform international line of authority.
III. German Lower-Court Case Law
German courts have, in recent months, addressed the protectability of AI-generated content with notable dynamism. The Amtsgericht (Local Court) Munich denied copyright protection for a purely AI-generated logo in one of the first German rulings on point, holding that the human input must shape the resulting output “in a sufficiently objective and clearly identifiable manner” for the result to qualify as the author’s own intellectual creation.³ The Landgericht (Regional Court) Frankfurt am Main shortly thereafter clarified the treatment of hybrid works — that is, works combining human and AI-generated elements: under the principle of legal separability, humanly created portions of a work remain protected even where combined with AI-generated elements, though the party invoking protection bears a secondary burden to substantiate the concrete human creative process.⁴
The German Federal Court of Justice (BGH), in its Birkenstock Sandal decision, held that the burden of pleading and proof for the existence of the author’s own intellectual creation always rests with the party invoking copyright protection.⁵ Applied to AI-generated content, this means: whoever claims protection must affirmatively demonstrate the concrete, identifiable human creative contribution — a bare assertion does not suffice.
IV. The CJEU: An Autonomous, EU-Law Concept of “Work”
Of central importance is the judgment of the Court of Justice of the European Union of 4 December 2025 in the joined cases Mio and konektra.⁶ The CJEU reaffirmed its settled case law that a subject matter can be classified as original, and therefore as a “work” within the meaning of Directive 2001/29/EC, only if it reflects the personality of its author by expressing that author’s free and creative choices.⁷ Conversely, there can be no free creative act of authorship where the creation of an object was determined by technical considerations or other constraints that left no room for the exercise of artistic freedom.⁸ This formula is not new; it continues a line of authority the Court had already developed in Infopaq International (an eleven-word newspaper-article excerpt),⁹ Painer (portrait photography),¹⁰ and Cofemel (works of applied art).¹¹ In all of these decisions, the concept of a “work” is treated as an autonomous concept of EU law, to be interpreted uniformly across the Union, applicable throughout the scope of the InfoSoc Directive¹² and therefore determinative of every Member State’s copyright law.
The decisive point for the AI debate lies in the structure of this formula itself: “free creative choices” and the reflection of a “personality” are categories that conceptually presuppose a human being. An AI system makes no decisions in the legal sense; it generates output according to stochastic or algorithmic parameters. It has no personality capable of being reflected in a work. The Union’s highest-level case law thus arrives, by structural extension, at the same result as the U.S. and German lower-court case law, without any need for a separate, AI-specific rule.
V. The Austrian Legal Position
The Austrian Copyright Act (UrhG) defines “works,” in § 1(1) UrhG, as “original intellectual creations in the fields of literature, music, the visual arts, and cinematography.”¹⁴ The Austrian Supreme Court (OGH) concretized this concept as early as 1964, in a decision that remains authoritative today, holding that the Act understands a “work” to mean only the result of creative intellectual activity that has received its distinctive character from the personality of its creator.¹⁵
This anchoring in the “personality of the creator” is verbatim congruent with the formula the CJEU has used for the EU-law concept of a work in Painer, Cofemel, and, most recently, Mio/konektra — no coincidence, but rather an expression of the fact that § 1 UrhG, within the harmonized field (in particular as regards the reproduction right under Articles 2 to 4 InfoSoc Directive), must be interpreted in conformity with EU law, and that the OGH is bound by the interpretation of the Court of Justice of the European Union. It has long been the unanimous position of Austrian case law and legal scholarship that only natural persons are capable of creative intellectual activity within the meaning of § 1 UrhG; legal persons are excluded as authors, and machines a fortiori more so.
From the interplay of § 1 UrhG, the settled Austrian case law on the personality-bound nature of authorship, and the EU-law determination of the concept of a work by the CJEU, the following necessarily follows for Austria: purely AI-generated content — whether logos, advertising copy, visual works, or editorial content — fails, for want of human authorship, to satisfy the concept of a “work” under § 1 UrhG and is therefore not protectable. An “author” in the legal sense simply does not exist in such cases.
VI. Consequence: A Broad Freedom to Imitate — and Its Limits
The practical significance of this finding is considerable and, in advisory practice, still too rarely appreciated. Where there is no author, no exclusive right arises in the first place — the content is, in the technical sense, in the public domain as soon as it is published. This concerns not only aesthetically demanding visual works, but equally objects that may appear mundane yet carry substantial economic weight: a corporate logo generated by AI without significant human reworking, automatically generated product descriptions in e-commerce, or — of particular practical relevance — fully algorithmically drafted newspaper articles in the context of so-called “robot journalism.” Those who publish such content cannot invoke copyright to prevent third parties from taking, reproducing, or further distributing it.
A limitation follows from the LG Frankfurt’s separability doctrine: where AI output is significantly reworked by a human — for example, through editorial revision of a newspaper article, individual creative intervention in a logo, or an independent act of selection and arrangement — protection may arise to the extent of the human contribution.¹⁶ The burden of proof for this, however, as the BGH has made clear,¹⁷ rests with the party invoking protection; blanket assertions do not suffice, and the concrete creative contribution must be documented.
In Austria, residual protection may, at most, arise under unfair competition law. Under § 1 of the Austrian Unfair Competition Act (UWG), imitation of another’s product that is not protected by an exclusive right is, in principle, free — but it may, in the presence of particular unfair circumstances, such as slavish imitation, avoidable confusion as to origin, or unfair exploitation of another’s reputation, constitute unfair competition in an individual case.¹⁸ This protection, however, is not an exclusive right of the kind copyright provides; it presupposes qualifying surrounding circumstances and operates only inter partes, within a concrete competitive relationship.¹⁹ For purely AI-generated content lacking such circumstances, full freedom to copy remains the rule.
VII. Comparative Outlook: Fragmentation Rather Than Harmonization
The international picture is uneven. While the line of authority described above leads, in the United States, in Germany, and — indirectly, through the CJEU — in Austria as well, to a lack of protection for purely AI-generated content, Italy has since 2025 taken its own path, expressly clarifying by statute that works created by humans with AI assistance can be copyright-protected, provided they reflect the author’s own intellectual effort.²⁰ There is, as yet, no EU-wide, harmonized special regime for AI-generated works; the general criterion of the author’s own intellectual creation, grounded in human authorship, remains controlling for the time being.
VIII. Recommendations for Practice
The internationally coherent line of authority set out above — from Thaler v. Perlmutter, through German lower- and higher-court case law, to its EU-law grounding via the CJEU — leaves no serious doubt as to the Austrian legal position: purely AI-generated content is not protectable for want of human authorship. For practice, this yields the following:
• Anyone claiming legal protection for AI-assisted content should document the human creative contribution from the outset (draft stages, editorial interventions, selection decisions) in order to be able to satisfy the secondary burden of substantiation.
• For logos, advertising copy, and editorial texts, merely cosmetic revision of AI output will regularly not suffice; what is required is an objectively identifiable, independent creative contribution.
• Companies and publishers relying on purely automated content must reckon with the fact that competitors may lawfully take over such content without any copyright sanction; protection can, at most, arise on a case-by-case basis under unfair competition law, but such protection is considerably weaker and more condition-dependent than copyright protection.
• Further legal developments — in particular, any prospective EU-wide special regime — should be monitored; until such a regime exists, a human being’s free creative choice remains the controlling touchstone.
Endnotes
1. Thaler v. Perlmutter, No. 23-5233, 2025 WL 839178 (D.C. Cir. Mar. 18, 2025).
2. Thaler v. Perlmutter, No. 25-449 (U.S., petition for certiorari filed Oct. 9, 2025; cert. denied Mar. 2, 2026).
3. AG München, Endurteil v. 13.02.2026, Az. 142 C 9786/25, GRUR-RR 2026, 143.
4. LG Frankfurt a.M., Urteil v. 17.12.2025, Az. 2-06 O 401/25, GRUR-RS 2025, 41927.
5. BGH, Urteil v. 20.02.2025, I ZR 16/24 — Birkenstocksandale — BGHZ 243, 147 = GRUR 2025, 407.
6. EuGH, Urteil v. 4.12.2025, verb. Rs. C-580/23 und C-795/23 — Mio u.a. und USM/konektra — GRUR 2026, 72.
7. EuGH, GRUR 2026, 72, Rn. 48 f. (citing EuGH, Urteil v. 12.09.2019, C-683/17 — Cofemel — GRUR 2019, 1185, Rn. 29–31).
8. EuGH, GRUR 2026, 72, Rn. 49.
9. EuGH, Urteil v. 16.07.2009, C-5/08 — Infopaq International — Slg. 2009, I-6569.
10. EuGH, Urteil v. 01.12.2011, C-145/10 — Painer — Slg. 2011, I-12533.
11. EuGH, Urteil v. 12.09.2019, C-683/17 — Cofemel — GRUR 2019, 1185.
12. Richtlinie 2001/29/EG des Europäischen Parlaments und des Rates vom 22. Mai 2001 zur Harmonisierung bestimmter Aspekte des Urheberrechts und der verwandten Schutzrechte in der Informationsgesellschaft (InfoSoc-Richtlinie).
13. See, applying the Mio/konektra formula to AI-generated content, AG München, 142 C 9786/25 (n. 3 above); OLG Düsseldorf, Beschl. v. 02.04.2026, Az. I-20 W 2/26; and, applying it to a work of applied art, LG Düsseldorf, Versäumnisurteil v. 22.12.2025, Az. 14c O [number to verify] — Stratocaster.
14. § 1 Abs. 1 UrhG (Bundesgesetz über das Urheberrecht an Werken der Literatur und der Kunst und über verwandte Schutzrechte).
15. OGH 1964 (leading formulation on the “personality of the creator” standard) — precise case number to be verified via RIS before citation in any filing or publication.
16. LG Frankfurt a.M., 2-06 O 401/25 (n. 4 above).
17. BGH, I ZR 16/24 — Birkenstocksandale (n. 5 above).
18. § 1 UWG (Bundesgesetz gegen den unlauteren Wettbewerb 1984).
19. Ibid.
20. Legge 23 settembre 2025, n. 132 (Disposizioni e deleghe al Governo in materia di intelligenza artificiale), Art. 25(a), amending Art. 1 of the Italian Copyright Act (Legge 22 aprile 1941, n. 633); in force since 10 October 2025.