AI-generated player image in sponsor advertising: consent and portrait protection under section 78 Copyright Act

A club or sponsor cannot use an existing player photograph for every AI edit merely because a general image approval exists. The specific image, recognisable person, campaign purpose, reach and scope of the consent must be assessed together for an artificially changed advertising image.

Section 78 of the Austrian Copyright Act protects the legitimate interests of the person shown when a portrait is made available to the public. The provision does not distinguish between an unchanged photograph and an image modified with technical tools. The decisive points are the image made public and the context of publication.

Section 78 of the Austrian Copyright Act covers portraits of persons that are made available to the public. In an AI edit, the first question is therefore whether the representation identifies the player for the audience addressed. Face, body, shirt, number, name, club setting or accompanying copy may work together to create recognisability.

A technical change does not automatically remove the personal link to the publication. At the same time, every remote resemblance does not necessarily create the same legal assessment. The specific version, its recognisability and the context in which the club or sponsor publishes it remain decisive.

The article on player-image licensing in professional sport deals with the general distinction between club communication, advertising, merchandising and contract end. This article focuses on the additional question whether the specific AI version falls within the original consent.

The consent should identify the source photograph and the representation to be created from it. It should also address permitted editing, advertising claim, sponsor, channels, territory, duration and agencies or platforms involved. The more strongly the result departs from the source photograph, the more important it is to save the exact version.

A general approval for marketing the player image sets a framework, but it does not answer every question about a synthetic advertising image. The parties should state whether artificial changes, new body or playing situations, product associations and paid advertising are included. A later campaign should not rely on an older approval without checking its scope.

The approval route belongs in the file as well. Save the image file, layout, copy and response of the responsible person. The approval must be linkable to the version that is actually going to be published.

Section 78 prohibits public dissemination where it infringes the legitimate interests of the person shown. In sponsor advertising, the full context therefore matters: what statement is linked to the image, which product is promoted and what impression does the specific representation create?

A realistic player portrait in a neutral club announcement may be assessed differently from an image that attributes a particular performance, political statement or personal recommendation to the player. An artificially created playing situation or exaggerated representation may also affect the player’s interests. The assessment remains case-specific.

The club and player should review the image together with the advertising copy and placement. A cropped draft in an internal file does not answer the question about public sponsor advertising. Conversely, a short advertisement can have substantial external impact through its audience, reach and repetition.

Several parties may be involved in one campaign. The club supplies the photograph, the sponsor selects the product and an agency creates or distributes the design. The consent should show each party’s role and who makes the specific representation available to the public in which channel.

Approval for club communication therefore does not automatically transfer to the sponsor’s own advertising. Technical editing by an agency should also be treated as a relevant step when it changes the face, body, clothing or message.

Record who approves changes and how new formats are handled. A new platform, another sponsor or different advertising copy may require a new assessment even if the source photograph stays the same.

The review should include the player contract with amendments, existing image and marketing approvals and the unchanged source photograph. Add the AI-generated version, earlier versions, editing steps, prompt or technical instruction, layout, advertising copy and sponsor agreement.

If publication has already started, save the exact URL, screenshots, platform, audience, timestamps and information about paid distribution. For dynamic ads, identify the version used by file name or another reliable marker.

This makes it possible to separate questions about recognisability, reach, advertising copy, editing and consent scope. A general description such as “made with AI” cannot replace the actual version and publication evidence.

After the player contract ends, old publications, archives and new campaigns must be separated. An earlier match report may have a different basis from a sponsor image first published after the transfer with a new advertising statement.

Check whether the contract provides continuing rights for specific media, remaining stock or materials already produced. Such a clause does not automatically answer whether a new AI image with a changed context can continue to be used. Purpose, approval and legitimate interests must be reviewed for the new version.

The practical review includes running ads, shop pages, platform libraries and agency archives. Record when a campaign ends, which version is removed and which historical publication remains as an archive.

Does section 78 apply to an artificially changed player image?
The provision concerns the portrait made available to the public and infringement of legitimate interests. An AI edit must therefore be assessed by its recognisability, specific version and publication. The technical change alone does not answer the legal question.

Is a general approval to market the player image enough?
There is no general yes or no. Sponsor, purpose, advertising copy, editing, channels, territory and duration should be covered by the approval. A new synthetic representation may require additional consent or at least a specific review.

Who must approve the AI version?
The answer depends on the contract and approval process. The file should show who is responsible for the player, club, sponsor and agency and which specific image and copy were approved.

Can the image remain online after the contract ends?
Archives, existing publications and new sponsor advertising require separate review. Contract end, continuing rights, specific representation and legitimate interests must be considered together.

Start by preserving the source photograph and AI version in the planned or published form. Add the advertising copy, sponsor, platform, reach, editing steps, contract clause and existing approvals. Create a short timeline from the instruction to the publication.

Then compare the specific representation with the consent. Mark separately whether the open issue concerns recognisability, editing, advertising copy, sponsor, reach or contract end. This keeps the review focused on the actual decision point.

Contact the firm
If an AI-generated player image has already been published or sponsor advertising is planned at short notice, provide the contract, approvals, source photograph, specific version and campaign documents in an organised form. Mag. Bernhard Brandauer, Rechtsanwalt, will discuss the next practical steps with you.

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