Copyright Protects Your Choices, Not Your Subject: Lessons from the Underwater Dog Case

The recent German case concerning the photograph of a dog underwater has raised eyebrows regarding how much of a photograph can copyright really protect. The case concerned a photograph of a dog underwater and a former business partner of the photographer who decided to feed one of the images into an AI tool. The tool produced a comic-style version of the photograph, which was then published. This led to a copyright dispute between the two parties, which was ultimately lost by the photographer.

The Higher Regional Court of Düsseldorf held that transforming someone’s photograph into a comic-style image via AI does not automatically infringe copyright, finding that the AI version did not copy the protectable elements of the original framing, perspective, lighting, and sharpness, even though it retained the same underlying scene.

The court noted that  “the scope of protection for a photographic work is generally limited to the choice of image composition, perspective, lighting, and the sharpness or blur achieved through the correct combination of aperture and exposure time. The subject matter and motif are generally not eligible for protection.”

Although this is a German appellate decision and not a final Federal Court of Justice ruling, it is merely persuasive rather than binding, and not applicable outside Germany.

However, it raises some interesting questions that are relevant to Europe and the UK, namely the concept of an idea versus its expression. The photographer’s protected creative choices were her tight framing, specific perspective, and shallow depth of field – all decisions she made at the moment of capture. Whereas the scene itself (a dog reaching for a toy underwater) was an unprotected idea she captured but didn’t create.

English courts draw the same distinction from the same underlying doctrine. In discussing joint authorship of photographic works, the Court of Appeal in Martin v Kogan endorsed CJEU guidance in Painer v Standard Verlags on the kinds of choices that attract photographic copyright, and in a separate passage recognised that “if the idea is sufficiently general, then even if an original work embodies it, the mere taking of that idea will not infringe… it is a question of degree.” Whether in Düsseldorf or in the English courts applying the Copyright, Designs and Patents Act 1988, copyright rewards the photographer’s compositional and technical decisions and not the underlying subject matter.

The interesting takeaway from this case is that while the AI output itself may not clear the threshold for its own copyright (generic prompting alone typically won’t satisfy the “human intellectual creation” test), the restyled image can end up unprotected too, belonging to neither party. This emphasises the importance for photographers to document their creative decisions (RAW files, metadata, provenance tools) and to address AI-reuse of delivered images explicitly in contracts and licences, since the general law won’t necessarily fill that gap.

This case is a reminder that copyright protects the photographer’s eye, not what’s in front of the lens. If you are a photographer or a creative individual working with AI and are concerned about copyright issues, please do not hesitate to reach out to our team of specialist lawyers.