Copyright, AI and Artists

Copyright, AI and Artists

In the fast-evolving world of visual arts, one of the biggest questions looming over Australian creators right now is this: if artificial intelligence (AI) helps you make art, do you actually own it?

This issue is particularly relevant any one in the Visual Arts if you practise in photography, digital art, illustration, painting, mixed media, and more. As artists explore new tools like Midjourney, DALL·E, Stable Diffusion and other generative AI platforms, many are excited by the creative potential. But as a lawyer who works closely with artists, there is legal uncertainty that comes with it.

As the law currently stands in Australia, the Copyright Act 1968 (Cth) only protects works created by people. That means if AI generates a piece of art with little or no human input, it likely isn’t protected by copyright. And for visual artists, copyright isn’t just a formality. It’s the foundation of how you exhibit, license, and earn from your creative practice.

In a world where tools are evolving faster than the rules, there are no strict black-and-white answers.

Whether something is protected by copyright depends heavily on context—and even then, the legal answer isn’t always clear. But on balance, what we seem to be finding in the law is that the more human creativity you can demonstrate, the stronger your legal footing under Australian copyright law.

Let’s walk through a few examples of how AI might be used—and what the legal implications could be for artists, designers, and creatives in Australia.

1. Fully AI-Generated Artwork

Say you type a prompt into an AI tool: “Stormy ocean with moonlight reflecting on the water.” The AI generates a stunning image. You didn’t sketch it, paint it, or photograph it. You just typed the words.

Under Australian copyright law, you likely wouldn’t own the copyright. The law doesn’t consider prompt-writing alone to be enough creative input when it comes to a picture. Since the AI isn’t human, and your role didn’t involve enough original expression, there’s no clear copyright owner.

As a result:

• You might not be able to stop others from using the image
• You may not be able to assert exclusive rights or enforce licensing terms
• You may even face uncertainty around selling or exhibiting the work

This doesn’t mean you can’t use the image, but from a legal perspective, it’s best to treat fully AI-generated art with caution if you want to control the image through copyright law.

2. AI as an Enhancement Tool

Now imagine you create a painting or digital artwork entirely yourself—but then use AI to tweak the colours, sharpen details, or remove a background.

In this case, you may remain the author. The core creative work is still yours. AI is being used more like a brush or a photo filter—it helps, but it doesn’t take over.

In this scenario, the law is far more straightforward—your creative control remains visible, and your copyright protection is likely to be more certain. However, I will say it again – the law is still catching up and there are no black and white rules. Context matters a lot. So if AI simply assists your creative expression—rather than replaces it—your copyright is likely to be protected.

And as AI tools become easier to access—bundled into software like Photoshop, Canva, and even social media platforms—it’s easy to forget that legal rights don’t automatically follow technological advances.

Just because a tool exists doesn’t mean the law gives you full rights to what it produces. It’s up to the creator to ensure the end result reflects human input, intention, and authorship.

3. Human + AI Collaboration (The Blended Case)

What if you use AI to generate a base image, but then you digitally manipulate it, repaint parts, add your own elements, and build on it until the final piece feels uniquely yours?

Legally, this is a grey zone. If your creative contribution is substantial enough—meaning it shows originality and intellectual effort—you may still be considered the author of the final work. But the more you rely on AI-generated components, it does get a lot murkier.

The key question the law asks is (as at the time this article was written!) is: Who contributed the expression of the ideas, not just the ideas themselves?

In this scenario, documentation of your process is essential. Keep it!

Screenshots, sketches, drafts, and layer files can all help demonstrate your input.

I like to tell clients to think of it like leaving a breadcrumb trail of their creativity.

Why does all of this matter?

For visual artists, copyright equals control. Without it, you risk losing the ability to:

• License your work to clients, agencies, or galleries
• Enforce your rights against unauthorised use or online infringement
• Monetise your practice through reproductions, merchandise, or NFTs

With so many artists working independently or running small creative businesses, your copyright is your most valuable asset. It’s what turns your creative output into a commercial opportunity. That’s why understanding Australian copyright law—especially when using AI—is important.

“Creativity takes courage,” said Henri Matisse. This is especially true today when artists are navigating a rapidly evolving digital world. As James Whistler (19th-century American-born, British-based artist) once noted:

“An artist is not paid for his labour but for his vision.”

Both of these quotes remind us that the true value of art lies not just in effort but in originality, perspective, and creative intention.

Australian Copyright law aims to protect exactly that—your unique, human contribution that cannot be replicated by a machine.

Practical Tips for Artists Using AI

1. Document Your Process – Keep a record of how you created the work. This could include sketches, source files, drafts, or screenshots that show your input. This is useful if someone questions authorship.
2. Be Transparent – If AI played a role in your process, consider stating it clearly in exhibition text or when licensing work.
3. Add Copyright Notices – Even though it’s not required in Australia, adding a simple © notice can signal that you consider the work protected and deter unauthorised use.
4. Check the Platform Terms – Some AI tools claim ownership over generated images or limit how you can use them. Read the fine print.
5. Don’t Assume All AI-Modified Work is Protected – The more AI does, the more the copyright case weakens.
6. Stay Informed – The law is evolving. International cases, new legislation, and industry standards may change how this works in the future.

Frequently Asked Questions (FAQs)

Do I need to register copyright in Australia?
No. In Australia, copyright protection is automatic as soon as an original work is created and recorded in material form (e.g., a drawing, painting, photograph, or digital file). There’s no official registration system here in Australia (unlike US INSERT LINK).

How is copyright created?
Copyright arises automatically when a creative work is made by a human author and recorded in some material form. It must be original and not copied from somewhere else.

Do I have to use a copyright symbol (©)?
No, it’s not legally required in Australia. But it can serve as a deterrent and make it clear that you consider the work protected. A typical format is: © [Name] [Year] e.g., © Jane Artist 2025.

Does Australia have any laws that specifically address AI and copyright?
Not yet. There are currently no provisions in the Copyright Act 1968 (Cth) that specifically deal with AI-generated content.

What has the Australian government done to date about this?
The Australian Government is reviewing this issue. You can read more here: https://www.ag.gov.au/rights-and-protections/copyright/copyright-and-artificial-intelligence-reference-group-cairg#:~:text=On%205%20December%202023%2C%20the,on%20Copyright%20held%20in%202023. The CAIRG (Copyright and Artificial Intelligence Reference Group) is a government working group exploring how Australian copyright law should respond to AI-generated art, with a focus on how copyright material is used and disclosed by AI systems.

How is the Government listening to artists in this area?
CAIRG is an advisory group made up of stakeholders from across creative, legal, and tech sectors, brought together to inform future policy. While individual artists can’t just sign up directly, organisations that represent artists’ interests can participate or pass on artists’ concerns. The group is currently focused on big questions like how AI tools use copyrighted material and how much transparency should be required from AI developers.

Have there been any court cases in Australia dealing with AI and copyright?
As of April 2025, no Australian cases have directly tested copyright claims involving AI-generated art. But with growing use of these tools, that may change soon.

AI is reshaping the creative process in fascinating ways. But no matter how advanced the tech gets, the law still looks for the human touch.

In my view, as a visual artist, your originality, skill and intent remain your strongest asset—and the foundation of your legal rights.

If you’re experimenting with AI tools, you might try and think of them as assistants, not co-creators.

Keep your creative voice front and centre, and treat AI as just another medium—not a shortcut.

Because in a world where algorithms can mimic style, your originality is your edge.

About Sharon Givoni and DesignWise Legal

Sharon Givoni is the principle of Sharon Givoni Consulting is a practising intellectual property and commercial lawyer in Australia and the author of the best-selling book Owning It: A Creative’s Guide to Copyright, Contracts and the Law. Through her law firm, Sharon Givoni Consulting, she advises visual artists—including painters, illustrators, photographers, textile designers, digital artists and designers—on all aspects of copyright, contracts, licensing and commercialising their work.

This platform, DesignWise Legal, offers templates, blogs, contract kits and legal resources for creatives.

Sharon Givoni Consulting is all about: “Legal Ease, not Legalese”® and helps artists “Turn Ideas Into Assets”™ in order to make the law accessible, protective, and empowering.

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Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.