AI Generated Images for Commercial Use - Legal Guide

Introduction

As AI image generation becomes mainstream, understanding the legal landscape for commercial use is essential. This guide covers current considerations, though laws are evolving rapidly.

Copyright Fundamentals

Can AI Images Be Copyrighted?

Current legal position (varies by jurisdiction):

• US: Copyright office has rejected protection for purely AI-generated images
• EU: Generally requires human authorship
• Other jurisdictions: Varies widely

The Human Element

Copyright protection may apply when:

• Significant human creative input in prompts
• Human selection and curation
• Substantial post-processing
• Integration into larger works

Practical Implications

• Others may also be able to use your AI images
• You may not be able to prevent copying
• Trade dress/trademark may offer some protection
• Terms of service provide contractual rights

Platform Terms of Service

What Most Platforms Grant

Typical terms include:

• Commercial use permitted
• You own (or license) what you create
• Platform retains some rights
• Must follow acceptable use policies

Important Variations

Always check specific platform terms for:

• Revenue thresholds
• Enterprise use requirements
• Attribution requirements
• Content restrictions

Key Questions to Ask

1. Can I use images commercially?
2. Do I need to credit the platform?
3. Are there revenue limits?
4. What content is prohibited?
5. Can I use for client work?

Commercial Use Types

Generally Permitted

• Website and blog content
• Social media posts
• Marketing materials
• Presentations
• Internal business use
• Products and merchandise (usually)

May Have Restrictions

• High-revenue products
• NFTs and crypto art
• Generating content for resale
• Training other AI models
• Explicit or harmful content

Typically Prohibited

• Deepfakes of real people
• Misleading or deceptive use
• Defamatory content
• Illegal purposes
• Trademark infringement

Risk Areas

Resemblance to Real People

Concerns when AI generates:

• Images resembling celebrities
• Identifiable private individuals
• Realistic human faces generally

Best practices:

• Avoid prompts with real names
• Don't use for impersonation
• Consider face detection/filtering
• Get releases if resemblance is intentional

Training Data Issues

Ongoing legal debates about:

• Whether AI training on images is fair use
• Artist rights in training data
• Opt-out mechanisms
• Compensation for artists

Style and Artistic Similarity

Consider:

• Avoid "in the style of [living artist]"
• Generic style descriptions safer
• Style itself not copyrightable
• But specific expression may be

Industry-Specific Considerations

Advertising & Marketing

• Generally permitted
• Avoid implying endorsements
• Be careful with human likeness
• Consider disclosure

Publishing

• Check publisher policies
• Some require AI disclosure
• Quality expectations vary
• Cover art vs interior use differs

E-commerce

• Widely used for product imagery
• Authenticity concerns exist
• Platform policies vary
• Customer expectations matter

News & Journalism

• Strict ethical guidelines
• Generally requires disclosure
• Documentary use limited
• Editorial policies restrictive

Best Practices

Documentation

• Save prompts used
• Keep generation records
• Document any editing/processing
• Maintain platform receipts

Disclosure

Consider disclosing AI use:

• When required by platform/industry
• For transparency with customers
• In professional contexts
• When ethical considerations warrant

Quality Control

• Review all generated content
• Check for unintended resemblances
• Avoid potential trademark issues
• Verify no inappropriate content

Insurance

Consider:

• Professional liability coverage
• E&O insurance
• Specific AI coverage emerging
• Consult insurance professional

Protecting Your AI Content

Contractual Protection

Since copyright may be limited:

• Use NDAs with clients
• Include usage restrictions in contracts
• Leverage terms of service
• Register trademarks where applicable

Building Value

Focus on aspects you can protect:

• Brand association
• Curation and selection
• Unique combinations
• Overall presentation

Staying Current

Evolving Landscape

The legal framework is changing rapidly:

• New court cases being decided
• Legislation being proposed
• Platform policies updating
• Industry standards developing

Resources

• US Copyright Office guidance
• Platform terms of service
• Industry associations
• Legal professionals specializing in AI

Practical Recommendations

For Small Businesses

1. Read platform terms carefully
2. Avoid real person resemblances
3. Keep records of generations
4. Use for appropriate content types
5. Consider disclosure where appropriate

For Enterprises

1. Develop AI content policies
2. Consult legal counsel
3. Consider enterprise licenses
4. Implement quality controls
5. Train staff on best practices

For Creatives

1. Understand your platform's terms
2. Build value beyond pure AI generation
3. Document your creative process
4. Consider hybrid approaches
5. Stay informed about developments

Disclaimer

This guide provides general information and should not be considered legal advice. Laws regarding AI-generated content are evolving rapidly. Consult with a qualified attorney for specific legal questions regarding your use case.

Summary

For commercial use of AI images:

• Check platform terms first
• Avoid real people resemblances
• Document your process
• Consider disclosure
• Stay updated on legal developments
• Consult professionals for significant use

AI-generated images are widely used commercially, but understanding and managing the legal landscape is essential for responsible use.