Can Intellectual Property Law contend with AI in the Art World?
- Sarah Kaloustian
- May 8
- 3 min read
The art industry has always been human-driven, from the creative to the commercial and legal. However, as Artificial Intelligence slowly seeps into our everyday lives, the art sector faces a significant challenge, with generative AI posing legal concerns around Intellectual Property and fine art pricing.
Intellectual Property Law: Founded on a human approach, challenged by Artificial Intelligence
Intellectual Property (IP) refers to creations of the human mind, whether a story, an invention, or other form of artistic work. IP law, therefore, aims to protect these creations.
'Creations of the human mind' are protected by copyrights, trademarks, patents, and designs. These rights allow humans some control over their works, giving them a certain degree of power. A copyright owner, for instance, is met with a set of rights regarding their works: “to copy [...] to issue copies [...] to rent or lend [...] to perform [...] to communicate [...] to make an adaptation”. These rights are created and adapted by and for the human mind. Furthermore, trade marks, defined by the Trade Marks Act 1994, offer the right of “protection [...] to the proprietor”. In this case as well, the proprietor is a human being. Patents are specifically catered to human inventions that fit in various categories; some of them being “new [...] inventive” or “capable of industrial application”. Designs are protected by the Registered Designs Act 1949, in which the author is the human creator, and, in the case of “a design generated by computer”, the author is the human at the origin of the AI process.
As such, IP law has, until now, been written and adapted for human beings and their creative output. Where does Generative AI find its place in all of this?
The Rise of Generative AI: Uncertainty in Intellectual Property Law
Mainstream generative AI tools, such as ChatGPT, are constantly evolving, and the latest 4o Image Generation update is worrisome for both the art world and IP law practitioners. Recently, the UK Supreme Court ruled that “AI [cannot be] recognised as a patent inventor”. But in today’s developing world, the legalities of AI training using copyrighted material are undetermined in the UK, awaiting clarification during the Getty Images v Stability AI case.
Currently, AI Image Generators, such as Canva, state that their creation of images uses a “machine learning model [that] scans millions of images across the internet”.
This poses a concern in the art world today: on the artist’s end, the possible use of their artworks by AI tools. On the commercial end, a devaluation of human-made art and a need for adaptation of the art industry.
Are artworks truly protected today? Commercial and legal implications of AI-generated art.
These concerns raise questions about the future of artists and the art industry. From a commercial point of view, the introduction of Generative AI in the art world might raise market uncertainty, potentially detering institutional investors, some of the industry’s main supporters.
AI’s commercial use in an artistic context is still new and foreign but was pioneered by Sotheby’s at the end of 2024, auctioning and selling Portrait of Alan Turing, created by a robot using Artificial Intelligence.
Legal repercussions are also affecting AI-generated art, as artists finding their works used by AI generative tools are starting to sue AI art generators. The repercussions are, of yet, still uncertain, as artworks aren’t truly protected on the internet.
Conclusion
Intellectual property law hasn’t yet been completely adapted to Generative AI. In the art world, this use of AI poses both ethical dilemmas related to artists and challenges to the commercial-legal subset of the industry. In today’s world, institutions are constantly shaping and evolving, and AI might be the next big driver for this change.
