Someone’s Selling an AI Copy of My Art

Photo by Vitaly Gariev from Unsplash

A quick look at copyright law, and why to get advice first.

You are scrolling online and there it is. Your painting. Or something that looks very similar only its now “AI-generated” and selling for a fraction of your price under someone else’s shop name.

It is an awful feeling, and yet, its happening to more artists every week. AI tools make it fast to churn out near-copies of an artist’s work.

Some platforms are starting to fight back by tightening their rules on AI-generated listings, but enforcement is patchy and copies still slip through.

Our law firm, Sharon Givoni Consulting, deals with this issue often and we hear from artists in exactly this situation. The first question is often: what do I do now? This blog looks at some of the steps you can take straight away, gives you a brief snapshot of what Australian law says, and explains why you should get legal advice before you send anything to anyone.

What to do straight away

1. Take a breath and stay quiet. Your first instinct may be to leave an angry comment, message the seller or post about it on social media. Resist it. A public accusation can backfire, tip the seller off before you have gathered your evidence, and in some cases expose you to legal risk.
2. Capture the evidence. Listings can disappear overnight. Take screenshots that show the full web address and the date. Save the listing page as a PDF. Note the shop name, the seller’s location if shown, the price, how many have sold, and any reviews. If the copy appears on products like mugs, prints or t-shirts, capture each one.
3. Put your proof of ownership together. Gather your original artwork, sketches, work-in-progress photos, layered digital files and anything with a date on it, such as an early social media post or an exhibition catalogue. The more clearly you can show that your work came first, the stronger your position.
4. Put them side by side. Line up your work next to the copy and make notes on what has been taken. Is it the whole image? A distinctive character or motif? Your exact composition? Or is it “just” a similar style? This matters a great deal, as you will see below.
5. Find out how far it has spread. Run a reverse image search (Google Lens and TinEye are free) on your key pieces. Copies often appear on several platforms at once, and it helps to know the full picture before you act.
6. Look up the platform’s reporting process. Most marketplaces, including Etsy, have an intellectual property infringement reporting tool. Read how it works and what it asks you to declare, but hold off on submitting until you have had advice (more on that below).
7. Protect your future work. While you deal with this, make your work harder to copy: post lower-resolution images, add a watermark, consider image-protection tools such as Glaze or Nightshade, and keep dated records of everything you create. Let your followers know where your genuine work is sold, without naming or accusing anyone.

What the law says (in a nutshell)

We are keeping this brief on purpose. The law in this area is detailed, and every situation turns on its own facts.

• The Copyright Act 1968 (Cth). In Australia, copyright in an original artistic work arises automatically when you create it. There is no need to register it. As the owner, you control who can reproduce your work and communicate it to the public, including online. Infringement generally involves copying a “substantial part” of a work, which is about the importance of what was taken, not just the amount. Importantly, copyright protects your actual expression, not your ideas or your general style.
• Moral rights (Part IX of the Copyright Act 1968). As the creator, you also have moral rights: the right to be named as the author, the right not to have your work falsely attributed to someone else, and the right not to have it treated in a way that harms your honour or reputation.
• The Australian Consumer Law (Schedule 2 of the Competition and Consumer Act 2010 (Cth)). Section 18 prohibits misleading or deceptive conduct in trade. If a seller is passing off your work as theirs, or suggesting a connection with you that does not exist, this may also be relevant.

AI adds another layer. Questions such as who is responsible for an AI-generated copy, and how the law applies to AI training, are still being worked out in Australia and overseas.

Why get legal advice before you send anything

It is tempting to fire off a strongly worded email or a platform complaint the moment you find a copy. Here is why it pays to pause and get advice first.

1. Threats can backfire. Section 202 of the Copyright Act 1968 gives a person a remedy against “groundless threats” of copyright infringement proceedings. If you threaten legal action and it turns out there was no infringement, the seller may be able to take action against you.
2. Style is not the same as copying. Because copyright does not protect style alone, a work that simply “feels like” yours may not infringe. A lawyer can tell you whether what was taken is likely to amount to a substantial part, and how strong your case really is.
3. Platform reports are formal declarations. Most infringement reporting tools ask you to confirm, often under penalty, that you own the work and believe in good faith that it has been infringed. Getting this wrong can cause problems, including having your own account or listings questioned.
4. Public accusations carry risk. Naming a seller on social media as a “thief” can raise defamation issues, even if you feel completely justified.
5. It is often international. The seller may be overseas, and the platform may be run by a company in another country (Etsy, for example, operates through entities in the United States and Ireland). Which law applies, and which remedy will actually work, needs careful thought.
6. There may be a better tool for the job. Depending on the facts, the most effective approach might be a carefully drafted letter, a platform takedown, a negotiated licence, or simply monitoring. A lawyer can help you pick the option that gets results without wasting time, money or goodwill.

Your quick checklist

• Don’t comment, message the seller or post publicly yet
• Screenshot and save every listing, with the web address and date
• Gather your originals, sketches and dated records
• Compare the works side by side and note what was taken
• Run a reverse image search to see how far it has spread
• Read the platform’s reporting process, but don’t submit yet
• Protect your future uploads
• Get legal advice before you send anything

How Sharon Givoni Consulting can help

Finding your work copied is upsetting, but you do not have to deal with it alone. Sharon Givoni Consulting works with artists, illustrators, photographers, musicians and creative businesses to protect their work. We can assess whether you have a case, prepare platform takedown requests and letters that are effective without exposing you to risk, and help you build a practical plan to protect your art going forward.

Our motto is “Legal Ease, Not Legalese”, so we will explain your options in plain English.

Please note the above article is general in nature and does not constitute legal advice.

Please email us info@iplegal.com.au if you need legal advice about your brand or another legal matter in this area generally.