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Navigating AI and Copyright for Fine Art Photographers, Digital Artists, and Art Buyers: Balancing Innovation and Protection

Generative AI, particularly in image creation, brings both opportunities and challenges for fine art photographers, digital artists, and art buyers. As AI technology evolves, its impact on copyright law and artistic practices becomes increasingly complex. In this short article, we share our perspective as artists on how AI intersects with artists' rights and practices. It reflects our personal opinions and philosophy of innovation and respect for original work as it pertains to the use of generative AI. 

Important: We're fine art photographers, not lawyers. If you need legal advice on generative AI, please seek out a copyright attorney.

A Matter of Perspective

We need to clarify a distinction by looking at the intersection where others are generating whole images using AI and their vast datasets versus editing our own images using the same generative AI tools. This distinction is crucial for photographers and artists to understand as it highlights the different ways AI can impact their work. One is potentially negative, the other positive in our view.

When people use AI to generate an entire image, it often involves a prompt describing the desired image and the extensive use of numerous original works that were used to train the datasets that make up the models. This process raises significant concerns about the amount and substantiality of the portions used, as it can involve copying large parts of many artworks without individual permission. Such practices can potentially infringe on the rights of original creators, as the new AI-generated image may not sufficiently transform the original content to qualify as Fair Use, as we’ll describe below.

On the other hand, using generative AI tools to edit one's own images presents a different scenario. Here, the photographer/artist retains control over their original work, utilizing AI to enhance or modify their creations in ways that align with their artistic vision. This application of AI, sometimes called “collaboration” (a term we don’t care for), is less likely to raise legal issues related to Fair Use since the artist is not incorporating extensive portions of others' copyrighted material but rather augmenting their own. 

Understanding these distinctions can help artists navigate the evolving landscape of AI in the creative process, ensuring they can leverage these new technologies while safeguarding their rights and respecting the rights of others.

Linette Cremon Reimagined #DA17
Linette Cremon Reimagined #DA17 ©2024 Jo Ann & George Aiello All rights reserved.

The Fair Use Framework and AI

Let’s begin with a brief discussion of “Fair Use” as we, as non-lawyers, understand it. Fair use, a key concept in copyright law, allows for limited use of copyrighted material without needing permission from the rights holders. However, the application of fair use to AI-generated content is intricate and important for artists to understand. Courts evaluate fair use through four main factors, which are nuanced when applied to AI:

  1. Purpose and Character of the Use: Transformative use is a critical element here. In this context, "transformative" refers to the use of copyrighted material in a way that adds new expression, meaning, or message rather than merely replicating the original work. AI-generated works can be transformative, but their commercial nature often complicates the fair use defense. For photographers, this means their works, if used without permission for AI training, might be leveraged commercially, negatively affecting their rights.

  2. Nature of the Copyrighted Work: Photographic works, being creative, receive strong copyright protection. However, the use of these works in AI training datasets, often without consent, undermines this protection. Most AI inputs are creative and accessible online, raising significant fair use concerns.

  3. Amount and Substantiality of the Portion Used: The extent of use, or how much of the original work is used, is a crucial factor in determining how significant that portion is to the overall generated work. Amount or “Extent of Use” refers to the quantity of the original work that is used in the new creation. In AI, this often means using large parts of original works, like whole images or substantial sections of text, to train algorithms and generate new content. Fair Use considers whether the amount used is necessary to achieve a transformative purpose. It is sometimes referred to as “Necessity for Transformation.” As we understand it, if the new work only uses as much of the original as needed to create something new and different, it is more likely to be considered Fair Use.

  4. Effect on the Market: AI-generated content that incorporates elements from copyrighted works can directly impact the market for the original works. This is particularly problematic for fine art photographers whose unique images may lose value if reproduced or reinterpreted without consent.

Peruvian Lily Reimagined #DA30
Peruvian Lily Reimagined #DA30 ©2024 Jo Ann & George Aiello All rights reserved.

Practical Implications for Fine Art Photographers and Digital Artists: A Double-Edged Sword

The use of AI in creating new images requires a careful balance between innovation and protection of original works:

  • Awareness and Vigilance: Photographers and artists must be aware that their works might be used in AI training datasets without their consent. This unauthorized use can lead to AI outputs that closely mimic or include elements of their original images.

  • Ethical AI Practices: On the other hand, using one's own images as reference materials for AI-generated art is a responsible practice. It ensures that the resulting digital art is a true extension of the artist’s vision without infringing on the rights of others.

  • Monitoring and Action: Photographers should monitor how their works are being used and be prepared to take action if they find their images in AI outputs created by third parties. Legal recourse might be necessary to protect their intellectual property rights.

Some sites that you can use:

Encouraging Ethical AI Use

At Aiello Studios, we advocate for the ethical use of AI in art. By using AI to reimagine and transform their own photographs, artists can innovate while maintaining control over their creative output. This approach not only respects the original works because, for the most part, they are their own but also leverages AI’s capabilities to expand artistic expression.

  • Personal Reimagination: Using AI to transform one’s own photographs into digital art allows photographers to explore new dimensions of their creativity. This process, often called “reference images,” respects copyright and adds unique value to the original works.

  • Creative Exploration: AI can serve as a tool for creative exploration by using your own images as reference images in AI tools. This enables artists to push boundaries while staying true to their artistic identity, ensuring that the resulting art is both original and respectful of copyright laws.

By navigating the complexities of AI with a clear understanding of copyright implications, fine art photographers and digital artists can protect their works while embracing new technological possibilities. 

We welcome your comments and opinions.

Note: This article was inspired in part by an article on the New York State Bar Association site titled: “Image-Generative AI: Has Technology Evolved Beyond Modern-Day Fair Use?” By Wendy Heilbut, Danielle Maggiacomo and Maggie Casey published on May 24, 2024. You can read the full article by clicking here: New York State Bar Association article.

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