The first returns have arrived in the battle between copyright holders and technology companies over whether AI training on artist data, or the use of AI to simulate artist styles constitute copyright infringement, and they are not encouraging for those who like their art human. For example:
- Courts have determined that training AI on lawfully acquired works of art is not copyright infringement.[1]
- Courts have determined that an AI-generated work with a prompt to be in the “style” of an existing author does not, in itself, violate that author’s copyrights or moral rights.[2]
- Congress has proposed legislation that would limit the ability of states to set their own laws and frameworks around AI.[3]
- The President has released an AI Framework that explicitly calls for loosening intellectual property protections in order to speed up AI developments and ensure competitiveness internationally.[4]
At the same time, generative AI programs continue to grow their capacity to produce works of literature, music, and visual art cheaply and with minimal prompting. In this sort of environment, what is an artist or aspiring designer to do, other than get a new second job? Fortunately, there are certain, legally-tested strategies that a determined artist may use to ensure the integrity and value of their work, even in these uncertain times. These include:
- Poison Pills: Existing software can turn visual art or other downloadable content into a poison pill that interferes with AI model training.[5]
- Harnessing AI against AI: Certain software programs use AI to detect style mimicry in AI-generated output, which allows for public shaming of those who use pirated works, and creates a diagnostic trail to support litigation for copyright infringement.[6]
- Embodied Artwork: AI can cheaply imitate digital works in all forms but cannot pick up a pen or a brush. We encourage, when feasible, our clients to embody their artwork and ideas in physical media that AI cannot duplicate, and which can have print runs, or access controlled.
- Brand Development: Many humans still want human-produced artwork, and by developing a strong personal brand (including intellectual property protections), you can ensure that what your patrons are buying is your
- Contracts: Contracts can include restrictions on use and distribution, and penalties for violation, that are far more protective than what can be achieved with a simple copyright or similar intellectual property protection. We encourage clients to proactively negotiate with distributors, galleries, and similar stakeholders to include strong restrictions on use and publication in all contracts.
We understand if you would prefer to devote your creative energy to your art—please feel free to leave the left-brain thinking about how to protect your magnum opus to your attorneys at Milgrom, Daskam, and Ellis.
[1] See, e.g., Bartz v. Anthropic PBC (Judge Alsup, June 23, 2025) and Kadrey v. Meta Platforms, Inc. (Judge Chhabria, June 25, 2025).
[2] See, e.g., Andersen v. Stability AI Ltd., 3:23-cv-00201 – CourtListener.com
[3] See Text – S.4178 – 118th Congress (2023-2024): Future of Artificial Intelligence Innovation Act of 2024 | Congress.gov | Library of Congress
[4] See America’s AI Action Plan .
[5] Nightshade
[6] Glaze
