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The ART in Artificial Intelligence
What Creatives Need to Know About AI, Copyright and Ownership
This article is written by Sharon Givoni Consulting – Turning Legalese into Legal Ease®
By now, we are all starting to get used to the idea that AI, is no longer just the stuff of science fiction. It’s changing the way we write, design, paint, compose, and even brainstorm.
For Australian creatives – whether you’re a visual artist, writer, graphic designer, or something in between – AI offers endless inspiration and possibilities.
But like many things that seem “too good to be true,” this high-tech helper comes with a serious legal twist, and this is what this blog examines.
Questions on the tips of peoples’ tongues include:
- Who owns AI-generated work?
- Can you copyright it?
- What happens if your prompt leads to something brilliant – or accidentally similar to someone else’s work?
- And if AI “learns” from thousands of artists and writers, what’s actually yours anymore?
At DesignWise, powered by Sharon Givoni Consulting, we’re here to give you clear answers (minus the legal mumbo jumbo).
This blog breaks down how AI is being used in art and writing, the copyright law basics you need to know, and what creatives should be doing to protect their ideas and output in this new digital frontier.
AI and Creativity
The first thing I want to say here is that while artificial intelligence isn’t quite replacing creatives, it certainly seems to be joining them in the studio.
In the art world, tools like MidJourney, DALL·E, and Adobe Firefly allow artists to type in prompts (“a flamingo at a disco in Van Gogh’s style”) and generate instant images.
These can be used for inspiration or sketching out ideas.
In fact, many painters now use AI to visualise concepts, enhance composition, or even overcome those good old creative blocks that can be so annoying!
One Australian artist, Belinda Stenton, explained how she uses AI-generated images as a form of therapy and artistic planning. The results help her bring deeply personal oil paintings to life (ArtsHub, 2024). You can read more about her here and see her art: https://www.belindastantonartist.com.au/news/i-am-wherever-you-find-me.
Similarly, Sam Leach, a well-known Australian painter, created a custom AI trained on his past work, essentially asking it: “What should I paint next?” The tool became his assistant.
His most recent bodies of work incorporate artificial intelligence fusing the tropes and gestures of paintings with the mechanics and gaze of the future. Have a look at it here: https://www.sullivanstrumpf.com/artists/sam-leach
Writers are also getting into AI with writing tools such as ChatGPT, Sudowrite, and Jasper AI. Some authors use AI to break writer’s block or rephrase awkward sentences. Others are experimenting with co-writing entire books or screenplays using AI-generated suggestions.
It’s easy to get swept up in the possibilities – but creatives need to stop and think: What’s the legal status of the work that comes out of this AI partnership? And if you didn’t technically “create” the whole piece yourself, do you even own it?
Copyright Law in Australia
Now here is the not-so-fun news: Australia’s copyright law hasn’t caught up with AI.
The current law is based on the Copyright Act 1968 (Cth), and, yes, 1968 was well before machines started generating poems, paintings and playlists.
The law protects “original works” created by an author. But to qualify, that author must be a real human being. Not a monkey, not a robot, and not a string of clever code. (For more on copyright go here: https://sharongivoni.com.au/short-guide-copyright-law-australia/)
Not a monkey you ask? Yes not a monkey! In the famous Monkey Selfie case (Naruto v. Slater, No. 16-15469 (9th Cir. 2018)), a monkey took a photo using a human’s camera.
That simple act led to a court case with a battle over who owned the photo and the court decided that, adorable as it was (see image below), the monkey couldn’t own the copyright. Why? Because of one simple rule: Only humans can be authors. That case was in the US, but in Australia we have a similar rule.
Image of the monkey in the case:
Photographer: David Slater
In Australia, the Telstra White Pages case (Telstra Corporation Limited v Phone Directories Company Pty Ltd [2010] FCAFC 149) made it clear that purely computer-generated work – without human input – won’t be protected either. If a machine is doing the bulk of the work, it’s not “original” in the legal sense. To read the case go here: https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCAFC/2010/149.html
So if something is generated wholly by AI — say, a painting from MidJourney or a paragraph written by ChatGPT — then you might not legally own it.
You might not even have the legal right to use it commercially, depending on the platform’s terms and conditions.
Some AI tools limit what you can do with their output unless you’re on a paid plan or have a licence. If you are unsure, best to get legal advice.
In short: you can’t own what you didn’t really create, at least not under the current law.
Even if you write the prompt and make creative decisions, the line between “human-authored” and “machine-made” is blurry.
For writers, the challenges are especially complex.
Say you’re writing a novel and you ask ChatGPT for a few plot twists. You take some, reject others, and use that as a base to build your story. You’ve still done most of the writing – but the bones of the idea might be part-AI. This to may affect your copyright.
Similarly, if you’re an artist using AI-generated reference material and then repainting it by hand, the law may consider your work to qualify as a new, original work. But again – there’s no bright-line rule. That’s why documentation is key – keep notes, drafts, prompts, and sketches showing your process.
At Sharon Givoni Consulting, many of our clients are writers and artists who use AI as a creative tool, not a replacement.
They don’t just hit “generate” and call it a day.
They refine, rework, rewrite, and repaint – in other words, they’re still the creators.
What Should You Do Now?
There’s a lot of excitement (and anxiety) about AI right now. Will it make us all redundant? Will it spark a new renaissance? Or will it just generate a lot of odd images of cats in space suits?
For creatives, the answer lies somewhere in the middle. AI can be a brilliant tool, but it’s not the creator – you are. And while the law is slow to change, your legal rights still depend on good old-fashioned human effort.
At DesignWise and Sharon Givoni Consulting, we’re here to help you navigate that line – and stay in control of your creations, your rights, and your career.
If you’re not sure where you stand, or if your AI-powered project is legally sound, get in touch with us. And for now here are some tips to take away:
- Use AI as a tool, not the artist.
- Add your own touch to make it yours.
- Check the terms before you use or sell.
- Keep records of your creative process.
- Get legal advice before it gets messy.
To read more about AI and artists click here: https://sharongivoni.com.au/ai-and-the-law-key-legal-issues-for-businesses-and-creatives/
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.