Disclaimer: This article is for informational purposes only and does not constitute legal advice. Please consult with a legal professional for your specific situation.
AI can create stunning visuals for your business, but one question looms: Can you legally use them? The answer isn’t as straightforward as you might hope, but it’s not as scary as you might fear either.
The commercial use of AI-generated images sits at the intersection of rapidly evolving technology and centuries-old copyright law. While legal frameworks are still catching up to AI capabilities, understanding the current landscape can help you make informed decisions about using AI art in your business.
This guide breaks down the key legal considerations, platform-specific policies, and practical steps you can take to use AI-generated images commercially with confidence. Whether you’re a small business owner, marketer, or creative professional, you’ll find the clarity you need to navigate this complex but manageable terrain.
Key Takeaways for Commercial Use (The Short Answer)
Who owns it? Pure AI art is likely public domain. Significant human editing can create a new, copyrightable work.
Can you use it? Yes, if the platform’s Terms of Service grant you commercial rights.
Which platforms are safest? Adobe Firefly (trained on licensed content), Midjourney (for paid users), and DALL-E 3 all grant clear commercial rights. Always read the latest terms.
How do you stay safe? 1) Read the ToS, 2) Avoid trademarks and copyrighted characters, 3) Avoid real people’s likenesses, and 4) Modify the image to add human creativity.
Platform Policies: What the Terms of Service Say
While copyright law provides the legal framework, platform terms of service create the practical rules you must follow. Each major AI image generator has different policies regarding commercial use.
Midjourney Commercial Use Policy
Midjourney’s approach to commercial rights depends heavily on your subscription level:
Free Trial Users:
- No commercial use allowed under any circumstances
- Images created during free trials cannot be used for business purposes
- All free trial images are subject to Creative Commons Noncommercial 4.0 Attribution International License
Paid Subscribers:
- Full commercial rights granted to all images you generate
- You own the images you create (subject to the general copyright limitations discussed above)
- Can use images for any business purpose, including resale
- No attribution required to Midjourney
Important Midjourney Considerations:
- Commercial rights only apply to paying subscribers
- Rights are non-transferable (you can’t sell your Midjourney account with its rights)
- Midjourney retains the right to use your prompts and generated images for service improvement
- Public generations can be used by other Midjourney users unless you have a Pro subscription with “Stealth Mode”
OpenAI (DALL-E 3) Commercial Use Policy
OpenAI takes a more straightforward approach to commercial rights:
All Users (Free and Paid):
- Full commercial rights granted to images you generate
- Can use, modify, and distribute images for any purpose, including commercial
- Can sell products or services that include DALL-E 3 generated images
- No attribution required to OpenAI
ChatGPT Plus and API Users:
- Same commercial rights as free users
- Higher generation limits and priority access
- API users get additional terms for business integration
OpenAI’s Key Advantage: Unlike some platforms, OpenAI grants commercial rights even to free users, making it one of the most business-friendly options for commercial AI image generation.
Important Limitations:
- You cannot use DALL-E 3 to generate images of real people without consent
- Cannot generate copyrighted characters or trademarked content
- Must comply with OpenAI’s usage policies regarding harmful or misleading content
Stable Diffusion (Open Source) Commercial Use Policy
Stable Diffusion operates under an open-source model with specific licensing terms:
CreativeML Open RAIL-M License:
- Commercial use is generally allowed for most applications
- Can modify, distribute, and use commercially
- Must include license notice when redistributing the model
- Subject to use-based restrictions rather than user-type restrictions
Prohibited Uses Under the License:
- Cannot use for illegal activities
- Cannot generate harmful or misleading content
- Cannot violate others’ privacy or rights
- Cannot use for surveillance or law enforcement without consent
Hosting Platform Variations: Different platforms hosting Stable Diffusion may have additional terms:
- DreamStudio (Stability AI’s platform): Grants commercial rights to paid users
- Hugging Face: Follows the base license terms
- Self-hosted: Only bound by the original license terms
Adobe Firefly Commercial Use Policy
Adobe has positioned Firefly as a commercial-safe option:
Commercial-Safe Training Data:
- Trained only on Adobe Stock images and public domain content
- Designed to avoid copyright and trademark issues
- Includes Content Authenticity Initiative metadata
Commercial Rights:
- Full commercial rights for Creative Cloud subscribers
- Enterprise-grade indemnification for qualifying uses
- Clear licensing terms designed for business use
Best Practices: A 4-Step Checklist for Using AI Art Safely
Following these best practices can help minimize legal risks and ensure you’re using AI-generated images appropriately for commercial purposes.
Step 1: Read the Terms of Service
Why This Matters: Platform policies change regularly, and what’s allowed today might not be tomorrow. Always verify current terms before using images commercially.
Actionable Steps:
- Bookmark the terms of service page for each platform you use
- Set calendar reminders to check for updates quarterly
- Screenshot relevant sections for your records
- If you’re a business user, consider reaching out to platform support for written clarification on specific use cases
Red Flags to Watch For:
- Platforms that don’t explicitly grant commercial rights
- Requirements for attribution or revenue sharing
- Restrictions on specific industries or use cases
- Different rights for different subscription tiers
Step 2: Avoid Trademarked & Copyrighted Content
The Risk: Even if you have rights to the AI-generated image, you don’t have rights to use someone else’s intellectual property within that image.
What to Avoid:
- Character Names: Don’t prompt for “Mickey Mouse,” “Superman,” or any recognizable fictional characters
- Brand Names: Avoid “in the style of Nike” or “Coca-Cola logo”
- Living Artists: Don’t use phrases like “in the style of Banksy” or other contemporary artists
- Copyrighted Works: Avoid references to specific movies, books, or other protected content
Safe Alternatives:
- Use generic descriptions: “cartoon mouse” instead of “Mickey Mouse”
- Reference art movements or historical styles: “impressionist style” instead of “in the style of Monet”
- Create original characters and concepts
- Use royalty-free reference materials for inspiration
Step 3: Avoid Using Real People’s Likenesses
Legal Risks: Using someone’s likeness without permission can violate publicity rights, privacy laws, and personality rights, even if the image is AI-generated.
What This Means:
- Don’t prompt for specific celebrities, politicians, or public figures
- Avoid using real people’s names in prompts
- Be cautious with images that might accidentally resemble real individuals
- Consider the context—editorial use may have different protections than commercial use
Special Considerations:
- Historical Figures: Generally safer, as publicity rights typically expire, but verify for your jurisdiction
- Stock Photo Models: Even if you licensed a photo for AI training, you likely don’t have rights to create new images of that person
- Composite Images: Creating realistic faces from multiple references can still create legal issues
Safer Approaches:
- Use generic descriptions for human subjects
- Focus on artistic or stylized representations rather than photorealistic portraits
- Consider using clearly fictional or fantastical human-like characters
Step 4: Modify & Transform
Why Modification Helps: Significantly altering an AI-generated image adds human creative input, which can strengthen potential copyright claims and reduce legal risks.
Effective Modification Strategies:
- Substantial Editing: Use photo editing software to make meaningful changes
- Composition Work: Combine multiple AI-generated elements into new compositions
- Style Integration: Incorporate AI images into larger design projects
- Creative Reinterpretation: Use AI images as inspiration for hand-created works
What Counts as “Significant”:
- Changes that require creative decision-making
- Modifications that alter the image’s meaning or purpose
- Integration with other creative elements
- Artistic choices that reflect human creativity
Documentation: Keep records of your creative process, including:
- Original AI-generated images
- Step-by-step modification process
- Final versions with clear timestamps
- Notes about creative decisions made
The Core Question: Who Owns AI-Generated Art?
The fundamental question driving all commercial use concerns is simple: If an AI creates an image, who owns it?
The answer depends on several factors, but let’s start with what we know for certain.
Current U.S. Copyright Office Position
The U.S. Copyright Office has provided clear guidance on AI-generated works: Works created solely by AI with no significant human authorship cannot be copyrighted.
This means that purely AI-generated images—those created entirely by machine learning algorithms without meaningful human creative input—cannot receive copyright protection in the United States. They effectively enter the public domain immediately upon creation.
However, this doesn’t mean all AI-assisted works are uncopyrightable. The Copyright Office recognizes that AI can be a tool in human creative expression, much like a camera or Photoshop.
What Constitutes “Significant Human Authorship”?
The Copyright Office hasn’t provided exhaustive definitions, but they’ve indicated that significant human authorship might include:
Creative Input Examples:
- Detailed, creative prompting that involves specific artistic choices
- Substantial post-generation editing or modification
- Combining AI-generated elements into larger creative works
- Using AI-generated images as components in collages or designs
What Likely Doesn’t Qualify:
- Simple, descriptive prompts (“a red car”)
- Minor adjustments to AI-generated images
- Merely selecting from AI-generated options without modification
The key is that human creativity must play a central role in the final work’s creation. The more human creative decision-making involved, the stronger the potential copyright claim.
International Perspectives
Copyright law varies by country, and AI-generated content policies are evolving globally:
European Union: Similar to the U.S., requires human authorship for copyright protection, but individual member countries may have varying interpretations.
United Kingdom: Has traditionally been more flexible about non-human authorship but is currently reviewing AI-specific policies.
Other Jurisdictions: Many countries are still developing specific guidance on AI-generated works.
If you’re operating internationally, consider consulting with legal professionals familiar with relevant jurisdictions.
Industry-Specific Considerations
Different industries face unique challenges when using AI-generated images commercially.
Marketing and Advertising
Special Considerations:
- Advertising laws may require disclosure of AI-generated content
- Brand safety concerns with AI-generated imagery
- Client expectations about image authenticity
- Industry-specific regulations (financial services, healthcare, etc.)
Best Practices:
- Develop clear AI usage policies for your team
- Consider disclosure requirements in your jurisdiction
- Maintain quality control standards
- Document the source and modification of all AI-generated assets
Publishing and Media
Copyright Concerns:
- Editorial use may have different protections than commercial use
- Attribution and source documentation become crucial
- Reader expectations about image authenticity
- Potential conflicts with stock photo licensing
Recommended Approaches:
- Clearly label AI-generated content when appropriate
- Maintain editorial standards for AI-generated images
- Consider reader trust and transparency
- Develop consistent policies for AI content use
E-commerce and Product Sales
Unique Risks:
- Products featuring AI-generated designs may face trademark challenges
- Print-on-demand services may have specific AI content policies
- International sales complicate copyright jurisdictional issues
- Customer expectations about originality
Protective Measures:
- Verify print-on-demand partner policies
- Consider trademark searches for commercial designs
- Maintain clear records of image creation and modification
- Develop return/refund policies for AI-related issues
The Evolving Legal Landscape
The legal framework surrounding AI-generated content continues to develop rapidly. Understanding current trends can help you anticipate future changes.
Pending Legislation and Policy Changes
United States:
- Congressional hearings on AI regulation continue
- Copyright Office reviewing public comments on AI policy
- Various state-level AI regulations under consideration
- Industry groups developing self-regulation standards
European Union:
- AI Act includes provisions affecting AI-generated content
- Individual member states developing supplementary regulations
- Digital Services Act implications for AI platforms
- Ongoing consultation processes with stakeholders
Industry Developments
Platform Evolution:
- Major platforms updating terms of service regularly
- New platforms entering the market with different approaches
- Industry consolidation affecting available options
- Technology improvements changing capabilities and risks
Legal Precedents:
- Court cases involving AI-generated content increasing
- Settlement agreements providing industry guidance
- Professional organizations developing ethical standards
- Academic institutions establishing research frameworks
Risk Mitigation Strategies
Beyond following best practices, businesses can implement additional risk mitigation strategies.
Legal Protections
Professional Liability Insurance:
- Some policies now cover AI-related intellectual property claims
- Consider discussing AI usage with your insurance provider
- Document your risk mitigation practices for potential claims
- Review policy language for AI-specific exclusions
Legal Review:
- Establish relationships with intellectual property attorneys
- Implement internal review processes for AI-generated content
- Create documentation standards for AI content creation
- Develop response protocols for potential legal challenges
Business Practices
Internal Policies:
- Create clear guidelines for AI image generation and use
- Train team members on legal requirements and best practices
- Establish approval processes for commercial AI content
- Maintain records of AI content creation and modification
Client Communications:
- Develop clear contracts addressing AI-generated content
- Establish expectations about AI usage in client work
- Create disclosure protocols when appropriate
- Maintain transparency about content creation methods
Conclusion: Proceed with Awareness, Not Fear
The commercial use of AI-generated images is not only possible but increasingly common across industries. While the legal landscape continues to evolve, understanding current regulations, platform policies, and best practices allows you to use AI art for commercial purposes with appropriate confidence.
Key Takeaways:
- Copyright Protection is Limited: Pure AI-generated images generally cannot be copyrighted, but human creative input can change this.
- Platform Terms Matter Most: Your practical rights depend more on platform terms of service than general copyright law.
- Best Practices Reduce Risk: Following the four-step checklist significantly minimizes legal exposure.
- Documentation is Crucial: Keep detailed records of your AI content creation and modification processes.
- Stay Informed: The legal landscape is evolving rapidly, requiring ongoing attention to changes.
The intersection of AI technology and copyright law will continue to develop as the technology matures and legal frameworks adapt. By staying informed, following platform guidelines, and implementing thoughtful best practices, you can harness the power of AI-generated images while respecting intellectual property rights and minimizing legal risks.
With the right knowledge and practices, AI can become a powerful tool in your creative and business toolkit. If you’re ready to start creating, our guide to the 12 Best Free AI Image Generators details which platforms offer the best combination of quality and commercial-friendly terms.
Remember that when in doubt, consulting with a qualified intellectual property attorney familiar with AI-generated content can provide personalized guidance for your specific situation and jurisdiction. The investment in proper legal guidance often pays for itself by preventing costly mistakes and providing peace of mind as you integrate AI-generated images into your commercial activities.
The future of AI-generated content in commercial applications is bright, but it requires informed, responsible use. With the right knowledge and practices, AI can become a powerful tool in your creative and business toolkit.
A 4-step checklist for business owners, marketers, and creators to follow when using AI-generated images for commercial purposes. This process helps minimize legal risks by verifying platform policies, avoiding intellectual property infringement, and adding human creativity.
Total Time: 30 minutes
Step 1: Read and Verify the Platform’s Terms of Service
Before using any AI-generated image commercially, locate and read the platform’s specific Terms of Service (ToS). Confirm that the platform explicitly grants you a license for commercial use. Bookmark the ToS page and check it periodically for updates, as policies can change.
Step 2: Avoid Trademarked and Copyrighted Content in Prompts
Do not use prompts that include protected intellectual property. Avoid using brand names (“Nike logo”), copyrighted characters (“Mickey Mouse”), or the names of living artists (“in the style of Banksy”). Instead, use generic descriptions or reference historical art movements to create original, legally safer content.
Step 3: Avoid Using the Likenesses of Real People
Do not use the names of celebrities, politicians, or any identifiable real people in your prompts. Using someone’s likeness without their permission can violate their publicity and privacy rights. Opt for generic descriptions like “a portrait of a business executive” instead of a specific person’s name.
Step 4: Modify and Transform the Image to Add Human Authorship
Add your own significant creative input to the AI-generated image. Use photo editing software to make substantial changes, combine it with other design elements, or use it as a component in a larger creative collage. This process of modification strengthens your potential copyright claim on the final, derivative work.
Tools:
- Midjourney
- DALL-E 3
- Photoshop
- GIMP
