Source: Bird & Bird (Two Birds insights)

Three recent decisions from German courts — the Munich District Court (Case No. 142 C 9786/25), the Frankfurt Regional Court (Case No. 2-06 O 401/25), and the Court of Appeal Düsseldorf (Case No. I-20 W 2/26) — apply the EU standard that a “work” requires a human author’s free and creative choices to be manifest in the work itself. The courts used the CJEU Cofemel and Mio/Konektra framework to test whether the human user or the AI made the decisive creative choices, concluding that abstract ideas or open-ended instructions that leave selection to the model are insufficient. The rulings set a demanding threshold: concrete creative decisions must be made by the human in input, iterative interaction, or post-editing and must survive the model’s probabilistic generation process to appear recognisably in the final output.

The Munich court analysed three logo scenarios with increasing human input and denied copyright protection for all of them, finding the short prompt contained no creative choices, the long prompt left essential design choices to the AI, and iterative refinements amounted to technical craftsmanship rather than free creative choices. The Frankfurt court addressed whether a human-authored work loses protection after AI-assisted editing in a case involving handwritten song lyrics and minor AI-produced musical accompaniment; it adopted a structured three-step burden-of-substantiation framework (claimant presents work and authorship; defendant must point to specific indications of AI generation; claimant must then detail the human creative process). The Frankfurt court found the songwriter’s affidavits sufficient at the preliminary stage and held that slight AI modifications do not automatically strip a work of protection if the human original’s individual character survives.