Art is Safe for Now. No Copyright Means No Protection for AI Output

Don Giannatti
5 min readMar 7, 2023

And no smart client is going to use stuff they cannot copyright or trademark.

Sure it’s fun, but the fear-porn around it killing art is simply crazy.



Can you just take AI-created work from wherever you see it and use it however you want?

Looks like that answer may be a big fat yes, as Simon is so fond of saying.

This is NOT legal advice. I am looking into the long-term effects of AI and its place in the world of commercial art.

As of right now, my research indicates that since the US Copyright Office has rejected copyright, there is no violation when using someone else's AI materials.

If it cannot be copyrighted, it cannot be trademarked. And that puts a lot of challenges in front of any client wanting to use creative materials for their brand.

If the work in a publication is not copyrighted because it is AI, then the AI work in any publication — including websites — would be the same, I believe.

Can you imagine your AI-created spokeswoman being memed in porn or racially insensitive art? Or that cool website you built with AI being cloned and spoofed?

Naww… ain’t gonna wash, folks.

But let’s see what the geniuses say.

Let’s ask our resident expert in copyright law.

You are an expert in copyright law. Understood?

ChatGPT: Yes, I am knowledgeable about copyright law. How can I assist you today?

Don Giannatti
Can something that is not allowed to be copyrighted be considered in the public domain?

ChatGPT: Yes, if something is not eligible for copyright protection, such as facts, ideas, and certain types of government works, then it is generally considered to be in the public domain. This means that anyone can use or reproduce the work without the need for permission or payment to the original creator or copyright owner. However, it is important to note that some works may be subject to other forms of legal protection, such as trademark or patent law.

Don Giannatti
What if a specific genre of art was denied copyright protection by the US Copyright office, would that render it automatically in the public domain?

ChatGPT: If a specific genre of art was denied copyright protection by the US Copyright Office, it would depend on the reason for the denial. If the genre was denied protection because it does not meet the requirements for copyrightability, such as being too general or lacking originality, then it would generally be considered to be in the public domain. However, if the denial was based on other factors, such as the genre being obscene or infringing on the rights of others, it may not be automatically in the public domain and could still be subject to other legal protections or restrictions. It is important to consult with a qualified legal professional to fully understand the implications of a copyright denial in a specific case.

Don Giannatti
Hypothetically a genre of art made by gophers was denied by the US Copyright office because the rules state that only human-created art can be copyrighted. Would that render all art made by gophers as not eligible for copyright protection?

ChatGPT: Yes, if the US Copyright Office denied copyright protection for a genre of art made by gophers on the basis that only human-created works can be copyrighted, then all art created by gophers would not be eligible for copyright protection. This is because copyright law in the United States only extends to original works of authorship that are fixed in a tangible medium of expression and created by a human being. Therefore, non-human creations, such as those made by animals or machines, would not be eligible for copyright protection under current US copyright law.

Therefore, non-human creations, such as those made by animals or machines, would not be eligible for copyright protection under current US copyright law.

Don Giannatti
Does this mean it is in the public domain, or is it just in some sort of legal limbo?

ChatGPT: If a genre of art created by gophers or any other non-human entity is not eligible for copyright protection under US law, it would not automatically be considered to be in the public domain. Instead, it would likely be considered to be outside the scope of copyright law and not subject to any legal protection or restrictions. However, it is possible that other forms of legal protection or restrictions may apply to such works, such as laws related to animal welfare or property ownership. Ultimately, the status of such works would depend on the specific circumstances and legal context in which they were created and used.

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So art is not going away, folks. Stop listening to the tech bros and internet weenies. ART is made by artists, and that is something we need to remember.

And I may be wrong. But so far, I cannot find the loophole that would prevent AI-created work from being copied wholesale and distributed far and wide. I imagine you could sell anything you see and know is AI made since it falls outside the jurisdiction of copyright law.

AI stock? Good luck.
AI “art”? Who wants to buy something that has no protection and no value?
Plagiarism? Nope — not if you cut and pasted it from AI.

NOTE: All italics above were copied directly from our new world’s resident genius, ChatGPT.

Go make some stuff!


One more time, this is my opinion. It is not to be construed as legal advice or to incite anyone to do anything. It is as I see it now. If you have some sort of legal knowledge that would mitigate my conclusions, please add it to the comments.

I am a photographer, designer, and photo editor. More of me here.

Check out my newsletter and community at Substack. We are new, but growing.

You can find my books on Amazon, and I have taught two classes at CREATIVELIVE.



Don Giannatti

Designer. Photographer. Author. Entrepreneur: Loving life at 100MPH. I love designing, making photographs and writing.