Australian copyright in the age of AI: A photographer’s survival guide
Imagine this: You see a stunning image of a misty mountain at dawn.
The light is perfect, the colours ethereal, and the mood haunting. But there’s a twist: it wasn’t taken by a photographer. It was generated entirely by AI with a prompt on the lines of “Mountain scene at sunrise, cinematic lighting.”
No camera. No lens. No human involved.
Now, imagine a different image. This one was taken by a real photographer who used AI tools to enhance the image—maybe remove a lamppost, add some birds, or adjust the colours using an AI-powered filter.
The bones of the photo are real, but the finishing touches are algorithmic.
In other words, the creative heartbeat of the image still belongs to you—the photographer. You composed it, shot it, and brought it into existence. Here, it can be argued that the AI is merely a digital assistant, helping with post-production.
Finally, there is this scenario: an artwork where the base is a photograph, but half the scene has been replaced or generated using AI. Maybe the sky was swapped, people were added, or backgrounds were altered dramatically. It’s part human, part machine.
This is the new frontier photographers are facing—and it begs a burning question: Do you own the copyright?
Because as a lawyer I can tell you, in photography, copyright isn’t just a legal formality. It’s everything. It’s your currency, your creative control, your livelihood.
Whether you shoot weddings, fashion, wildlife, or abstract compositions, your ability to licence, sell, or display your work is rooted in one thing: owning it.
As French photographer Henri Cartier-Bresson once said, “Your first 10,000 photographs are your worst.” It’s a reminder that photography, like all creative work, is a long game. And in this age of AI, understanding your rights is just as important as understanding your camera.
So, what does the law say about AI and photography in Australia?
The three scenarios explained
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Fully AI-Generated images (No photographer involved)
In Australia, the Copyright Act 1968 (Cth) requires a human author. If an image is created entirely by AI, with no human hand in the making, it currently does not qualify for copyright protection under Australian law.
This means:
- You can't stop someone else from using it
- You can't enforce rights like you could with a traditional photograph
- You can’t licence it as your own original work (at least not with legal certainty)
Even if you yourself typed the prompt into an AI image generator, that’s not enough to make you the “author” under Australia’s current law.
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AI-Enhanced Photographs
Let’s say you take a photo and then run it through software that sharpens it, adjusts the colours, or even removes background noise using AI. In this case, the underlying photograph is still yours, and copyright remains with you.
Put another way, if the AI is merely assisting you—such as by automating routine edits, enhancing clarity, or applying filters—it is easier to argue that the human creator retains copyright. The AI acts as an extension of your creative vision.
However, when AI begins to generate entirely new elements or reinterpret the image in ways that go beyond your original intent, it raises questions about whether the resulting work can still be attributed to you.
For example, if you use an AI tool to transform your photograph into a surreal artwork by adding objects, altering perspectives, or creating entirely new visual narratives, it may no longer reflect your original creative input.
Instead, it’s the AI's algorithmic decisions.
In Australia, this issue is further complicated by the fact that copyright law does not currently recognize non-human authorship.
If the AI's contributions are deemed significant enough to overshadow your role in creating the final work, it could be argued that no one owns the copyright because there is no identifiable human author. This creates legal uncertainty.
In summary, for this scenario, if the AI starts making the major artistic calls, it could call your ownership into question.
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Photographs Combined with AI Elements
Now what if you take your photo and use AI to generate parts of it?
Say you shoot a product on a plain backdrop and use AI to generate a stylised background or environment. You’ve essentially created a composite work.
In this case:
- You may own the copyright in your original photo
- But you may not own copyright in the AI-generated additions
This matters if someone uses the final image and you want to enforce your rights. You might only be able to enforce your rights over the part of the image you actually created.
Why this matters so much to photographers
Your photos are your assets. They are your brand, your body of work, your creative capital. As photographers you know this better than anyone.
Without copyright, you can’t license the image to clients. You can’t sell limited edition prints. You can’t stop someone from printing your image on a coffee mug and selling it on Etsy.
No copyright = no income.
And as AI becomes more common in photo editing tools, social media apps, and even smartphones, the line between photography and generative art is getting blurrier by the day.
Don’t forget also that Australian copyright law, authorship requires a human creator.
Machines, no matter how advanced, cannot hold copyright.
This principle was highlighted in the U.S. case of the “Monkey Selfie,” where a primate took a selfie using photographer’s (David Slatter’s) unattended camera (see photo below). Not surprisingly, the courts ruled that animals cannot own copyright.
So you can see: the more control you exert over the creative process, the stronger your legal claim to ownership.
Picasso famously said, “Art is the lie that enables us to realise the truth.” While AI can manipulate pixels and generate visuals, it is the human artist who imbues meaning and expression into the work.
That’s what copyright law seeks to protect—human creativity, not machine-generated output.
So, what does this all mean?
Be transparent. If AI had a hand in the process, say so. Not every client or publisher will care—but some might.
Make it yours. AI is a tool, not a replacement. If you’re using it to embellish your work, ensure that the final result still reflects your vision, not just the machine’s output.
Label your work. A copyright notice isn’t mandatory in Australia, but it acts like a “No Trespassing” sign—useful if someone wanders into your intellectual property uninvited.
Read the fine print. If you’re licensing AI-generated elements, understand what rights you do—or don’t—have. Some platforms keep ownership of what’s created; others grant you limited use.
Stay curious. This area of law is shifting under our feet. Subscribe to updates, follow legal blogs, and when in doubt, talk to someone who gets both the art and the law (like me!).
In conclusion
If you’re a photographer, AI can elevate your work—or jeopardise your rights.
In a world where art can be generated by an algorithm, the human element becomes more important than ever.
As Ansel Adams famously said, “You don’t take a photograph. You make it.”
And in today’s climate, how you make it could determine whether you own it.
Disclaimer: This article is for general information only and is not intended as legal advice. Every situation is different, and the law may change over time. If you have specific questions about copyright, AI, or your photography practice, you should seek advice from a qualified lawyer.
About the author: Sharon Givoni is a practising intellectual property and commercial lawyer in Australia and the author of the best-selling book Owning It: A Creative’s Guide to Copyright, Contracts and the Law. Her law firm, “Sharon Givoni Consulting”, advises photographers in all areas of the industry—from portrait and fashion to wedding, editorial, and wildlife photography.
Sharon also drafts custom terms and conditions for photographers. E info@iplegal.com.au Phone 0410 557 907
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Cover image: Getty