The Legal Low-down on AI-Generated Images

Ever had an exact image in your head and failed to find it? Wasted an hour or more on multiple stock image sites to uncover the perfect blend of ideas in one eye-catching composition?

It’s easy to get carried away searching for the perfect picture. After all, a picture is said to paint a thousand words which makes it especially important when using imagery in business. Particularly in advertisements, pitch decks, social media and other promotional materials designed to represent and stylise your brand.

Of course, most businesses will work with a graphic designer to build their brand and develop key assets, but being that content is king and there is immense pressure to pump out image-accompanied online communications on a daily basis, it’s not always possible or practical to outsource design every time. So, might AI-generated images be the solution?

In this article we’ll not only explore ownership rights when it comes to AI-generated imagery, I’ll also explain how you can stay legally compliant when using images created by AI and ensure you're not breaching intellectual property rights.

Are AI-Generated Images Good Enough for Professional Use?

Well - that’s the kind of loaded question that causes four-day-long comment wars on LinkedIn. So I’m going to carefully avoid giving my take on that. What is inarguable though, is AI images often carry flaws. Many AI-created images of people with missing limbs, added limbs, overlapping objects, disproportionate dimensions, etc have given the internet much to share and snigger about. Make sure to avoid your brand becoming a digital laughing stock by checking your AI-generated images for any flaws. 

Despite the imperfections though, AI generally is learning fast and seemingly getting better by the day. So, although it may be challenging to routinely create AI-generated images good enough for professional use now, it likely won’t be long until - with proper prompting and human supervision - AI could be producing images that pass as professionally designed by 'like, actual real-life people'.

Ethical Issues with AI-Generated Images

When working with human designers, it’s not too difficult to navigate ethical considerations because these are, for the most part, inbuilt into our consciousness. Digitally-generated designs can be less mindful of sensitive or protected subjects. Although most concerns around AI-generated imagery are related to copyright ownership issues, there are also many ethical concerns that are important to be aware of.

Arguably the most serious is the use of AI-generated images of children. Recently, a well-known clothing company was pressured to pull images of AI-generated child models that many consumers found inappropriate. This serves to remind businesses that you cannot expect AI to be mindful of your legal and/or moral obligations. Under the Protection of Children Act 1978 and subsequent updates, it is a criminal offence to create, possess, or distribute indecent images of children even if they are computer-generated. The law does not require the image to be of a real child to constitute an offence and where AI-generated depictions fall foul of these rules, you will likely still be held accountable.

Advertising standards must also be adhered to when using AI-generated images. There is existing regulation from the ASA (Advertising Standards Authority) which warns against imagery that implies results from use of the associated product that are unrealistic. This extends to AI-generated images also. So, for example, before and after (use of product) images that are computer generated may breach ASA guidelines or land you in hot water with Trading Standards under the Consumer Protection from Unfair Trading Regulations 2008.

AI Bias In Image Generation

AI tools often reflect the biases of their training data which may be skewed toward certain types of imagery. This means that AI-generated images can risk reinforcing harmful stereotypes such as only showing certain skin tones, body types, genders, or age groups in specific roles. 

Depending on the nature of advertising and of the business, a brand may be accused of breaching the Equality Act, especially in employment or service-related advertising. 

Even if not unlawful, biased imagery can lead to ASA complaints under the CAP Code, risking damaging credibility and reputation. Furthermore, brands using AI tools that carry bias may be unintentionally excluding or misrepresenting audiences.

AI Generated Images and Copyright Infringement

Copyright infringement is a worthy concern when it comes to AI-generated images. Although often requested to create unique works, AI relies on training data to be able to produce materials and some such data used to train AI may be copyrighted. So, although AI isn’t intended to recreate intellectual property it may unintentionally closely resemble or even replicate protected works. This could put those who use these images commercially, at risk of breaching intellectual property. Since most AI tools warn against this in their terms of use, it is usually the distributor of the images who will be held liable if they're found to be infringing copyright. 

Guidance - There is no definitive way to ensure AI has not used copyrighted works to create a ‘new’ image so all you can do is mitigate risk. Human review would be the first port of call but reverse image searching can also alert you to close matches.

Trademarks and Protected Works

A more obvious infringement of copyright is when AI-generated images feature logos, trade marks or famous artworks, whether in part or in full. 

Even if AI generates the content, businesses are still legally responsible if it includes copyrighted material without permission, particularly when it could suggest endorsement or a brand association.

Businesses must check AI-generated images for any inclusion of copyrighted or trade marked works and don’t be fooled into thinking that product association is flattering - without permission you are liable financially, even if you deem the use beneficial for the associated brand.

Guidance - You may instruct your AI tool to refrain from including trade marked or protected images but it may not always recognise them. Therefore, a robust process of human review (preferably by more than one person) is advisable.

Once more, it’s important to stress that although AI tool's terms and conditions may vary, most will hold the user accountable for publishing protected works, not the AI.

When AI Images Are Based On Copyrighted Works

Here we must tread carefully for there are minefields afoot! 

Now, we begin to explore images generated by AI that are intentionally derivative. For instance, your company’s cocktail-in-a-can products being served at Leonardo da Vinchi’s ‘The Last Supper’, unofficial merchandise with an AI-generated image of Ariana Grande, Bart Simpson sporting a 

T-shirt with your brand logo on.

All but one of these breaches copyright. Can you guess the odd one out?

Well, since commercial use of a person’s likeness without their express permission breaches multiple rights and regulations, any use of celebrity images, even if generated by AI, is prohibited. Use of a copyrighted character, even if altered by AI and especially if used to imply association or endorsement of a product or service, is still unlawful use of intellectual property. So that leaves us with the altered famous artwork, which is certainly an example of derivative work created for commercial purposes but it does not breach copyright, in this case, because the original image is no longer protected by copyright as the author died more than 70 years ago.

So yes, even with your added creative twist, using copyrighted content is still a legal no-go - unless of course you are granted permission, which you are welcome to pursue (and should expect to pay for).

Oh - and by the way, copyright infringement is only likely to become an issue when AI-generated images are used for commercial purposes. So if you use AI to create a video of Benedict Cumberbatch holding a boombox above his head and declaring his undying love for you to watch before bedtime each evening then, well…whatever gets you through the night, right?

Licensing Terms, Usage and Ownership of AI-Generated Images

Welcome to the grey zone my friends! 

With the extreme advancement of AI technologies, we are still reckoning with who owns what, whether it will stay that way, what can and can’t be used and who is liable when AI works are found to breach other laws and legislation.

So, I’m going to have to stress how important it is to read all the really boring words in those oh-so-lengthy terms of use. Because I know you just ticked that box claiming that you’d read and understood the terms without so much as even scrolling through, didn’t you? You were too keen to see which of the many AI tools out there could create an image of an imagined animal more ridiculous than the duck-billed platypus, weren’t you? And that’s ok because we were all excited by these revolutionary new tools. However, if you’ve read through all my above warnings and weighed up all considerations and are still wanting to use AI-generated images in your business then that’s fine - but now is the time to sit down with a highly-caffeinated coffee and comb through those T&Cs, because you need to know what your licence covers. 

Does your AI licence agreement give you ownership over every image created using the tool, for life? Do you need permission or need to upgrade your subscription to use the work commercially? What happens if your AI uses an image that is licensed elsewhere? These are the kinds of questions you must ask in order to mitigate risk.

So, like a parent instructing the kids to tidy their rooms before they go out to play, I’m going to strongly urge you to check and ensure you fully understand your AI tool’s terms before publishing any AI-generated content commercially.

Feeling a little overwhelmed by the grey areas of AI? Or just want to make sure you're on solid ground? Don’t hesitate to come to me with your AI-related legal questions, as well as any copyright concerns. My AI Toolkit for businesses is also designed to clear up the confusion and help you stay compliant when harnessing the mystic powers of AI.