“Do I own my AI art?” and other Generative AI questions answered

If you’ve been playing with creative Generative AI tools, then no doubt you’ve started to ask some questions. After all, this is a new frontier for creativity and technology, so there are plenty of unknowns. However, in our community we’ve noticed some key questions with regards to image making, editing and selling. So, with the help of Mitain Patel, Intellectual Property Counsel for Canon EMEA, we explore some of the ways that creatives are using Generative AI, and what the implications might be.

1) “I’m a freelance photographer and graphic designer. When I use AI in creating or editing work for a client, do I have to declare it?”

It depends on what you've agreed with that client. If you said in your contract with them that the images you provide will be fully authentic, then creating – or even editing – them using AI tools could well breach that agreement. So, on this basis, you might expect that if you’ve made AI use clear from the start, then you’re both fine. But like all things AI and law, it can be a little more complex than that. You need to bear in mind that even if your client is fine with the use of AI in principle, you may still risk exposing both you and them to legal action, especially if the AI tool you use generates content that infringes a third party’s intellectual property (IP). If this is a risk one or both of you are willing to tolerate, ultimately you may both need to take your own legal advice and come to some kind of arrangement that suits everyone involved.

However, it’s also important to put this kind of scenario into some realistic context. Using AI to edit someone’s personal wedding photographs may not carry the same risk in practice as, say, an AI-supplemented design that will be used commercially on thousands of greetings cards. Is it a judgement call? Yes. Is it a judgement call that probably should be informed by professional advice? Also, yes.

2) “I sell custom t-shirts online and I’d like to use an AI tool to make my existing designs look more like classic art styles – Andy Warhol or Banksy, something like that. Because it’s made using AI, that would be okay, right?

It depends on the training data that the AI is using. If permission has not been given for the original images to be used as training data (for example, the images used as training data are just scraped from the internet), then fulfilling such a request may infringe someone else’s copyright. So, by using an AI-generated image that incorporates creative elements of third party works (which, in this case, would come from the training images that the AI may have used without valid permission), then you are putting yourself at risk. The key takeaway here is that you need to ensure that the relevant training data used by the AI tool is cleared for your specific usage (which is easier said than done).

3) “Using a very detailed and original prompt, I've created a work of photographic art using an AI tool. I think it’s unique and I read somewhere that because I put so much work into my prompt, I can share (or even sell) the artwork online as my own. But my friends say I can’t. Who is right?”

Firstly, it’s important to take into consideration everything that’s already been said about training data in question two. Beyond this, one legitimate approach to sharing or publishing AI-generated photographic art (that potentially incorporates the work of other artists) is on the basis of certain exceptions to copyright infringement. You see, in some cases it may be acceptable to use copyrighted material for specific purposes, such as parody. But such exceptions are generally narrow, and they can also vary significantly from country to country. So, as things stand, any use of other artists’ works will always carry some risks.

There is also another important aspect to consider here. Some of these exemptions may only protect you for non-commercial usage. This means they will cease to apply if, for example, you sell prints or NFTs of your artwork, or custom t-shirts featuring the artwork.

In short: it’s complicated and the quality of your prompt is probably not the thing you should be focusing on here. And it’s always best to get your own legal advice from a specialist lawyer based on your individual case, especially if you’re going to do this commercially.

4) “I think my photography's been used by an AI. What do I do?”

That’s a really good question. And it’s important to say that you’re certainly not alone in asking it. A quick Google search will show you that plenty of artists are in the process of legally challenging the creators of some well-known AI art generators for copyright infringement. However, right now at least, there are three words that completely sum up the law in this area: complex, evolving and uncertain. And because each case needs to be addressed individually to understand all the details, the only way to assess exactly where you stand would be to speak to either a legal professional who has expertise in copyright law, or a reputable Rights Management Agency, who may be able to advise you on how best to protect your rights.

5) “I am in love with using AI! I use it to create new artwork and I also like using AI tools to edit my photography. But I’ve seen a lot of stories online about lawsuits and other artists saying that their work has been stolen and used in AI-generated artworks. So, I’m really worried – do I even own my AI art?”

This is going to be a law school exam question at some point! The classic legal answer is: it depends. Firstly, the AI you use is likely to have its own set of terms and conditions, and these would be the first port of call for any questions of ownership and usage rights. Secondly, there are a few different scenarios that might give you an idea of what it takes to ‘own’ a piece of novel or edited digital art. Let’s look at a few really ‘out there’ ways that AI could muddy the waters of ownership, just to illustrate the point:

A piece of work generated by AI through the prompt “A painting of Mickey Mouse driving a Range Rover in the style of Banksy".

It would be fair to say that resulting work is likely sufficiently original for a new copyright to subsist. But the work would be based on so much existing intellectual property that it would effectively be commercially unusable.

An original landscape photo is turned from a standard size to a panorama using Generative Fill, and other tourists are also edited out of the scene.

The copyright of the original image, of course, lies with the photographer, and as long as the editing does not materially impact the originality of the photo or pull in any uncleared third-party rights, the photographer would likely own the copyright, and be able to freely exploit the edited image (although they would not legitimately be able to claim that the photograph is 100% authentic).

The same landscape photo, but with a famous modern sculpture edited into the scene, using an AI tool.

Again, the copyright of the original photo would lie with the photographer, but not the added element. In which case, the resulting image would be original, yes. However, the fact that it adds a substantial underlying element (the sculpture), which is not the photographer’s original work means that the resulting image would likely infringe the copyright in the added sculpture, and so further clearances would be required before the image can be exploited.

As you can see, it’s a complex space, with new tools being released almost every day – each taking their own approach. Equally, every day brings news of progress in regulation and legal challenges around the world that, while they may not have relevance to our own territories, certainly inform the conversation. The main thing to keep in mind is that, like every creative, every case is different. And while technology and the law are moving at pace, it’s critical to seek out specific legal advice if you have real concerns, worries or specific questions around your use of GenAI.