AI in Brand Management

Status quo and current points of discussion on the copyright assessment of AI-based image generators

Background information

1. Infringement of rights due to (unlawfully used) KI training data:

• Training AI with copyrighted data can constitute copyright infringement – current lawsuits by various image providers and artists (USA & UK) are currently being examined.
• In Germany, § 44 b) UrhG defines that lawfully accessible artwork for text and data mining are permissible without the consent of the respective rights holder. Rights holders have an opt-out option.

2. Infringements of rights caused by new artworks created by an AI:

• The current discussion examines, whether the creation of a new artwork by the AI constitutes a copyright-relevant processing of the original artwork used in the training, e.g. if
  • Newly created images look very similar to an existing artwork
  • Newly created images very much resemble the style of an artist

• However, artistic styles are generally not protected by copyright.
• Assumption: An artwork generated by AI, which carries out a purely technical analysis of certain artworks on the basis of its characteristics, does not constitute a copyright adaptation.

Status quo and recommendations for the use of Midjourney

Important information and recommendations for the use of Midjourney

• There are currently no lawsuits against users of AI-based image generators such as Midjourney.
  • Accordingly, BASF is currently not assumed to be at risk with regard to the copyright-problematic training of AI tools when using them.

• It is currently not possible to predict the decision regarding infringements of rights by newly created artworks.
  • However, it is not likely that BASF will be held legally liable as a user.

• However, the following commands (prompts) should be avoided:
  • Creating an image in the style of a specific artist or a specific pre-existing artwork
  • Imitating the style of certain designs or brands

Basic do's and don’ts:

•   Before using AI-generated content, a critical and precise examination should be carried out!
•   No use or creation of AI-generated images of people (risk of personal injury)
•   No creation of images of well-known personalities

Other important background information

• Midjourney holds extensive rights to the input and output (prompts incl. results). This leads to:
  • Lack of exclusivity when using generated images
  • Midjourney trains its model without compensating for the content

• Midjourney´s disclaimers are very extensive and formulated in non-legal terms:
  • The possibility of recourse against Midjourney is therefore almost impossible .

Summary and recommendations for BASF

Midjourney can be used for testing AI-based image creation.

Currently, we are weighing up the benefits and risks for a long-term use of tools like Midjourney.

Even though stock image platforms like Getty are more expensive, they assume quite far-reaching liability.

Therefore, we recommend to use stock photos for now.