Copyright and AI: Can a Robot Be Rembrandt? (Part 2)
This article continues the conversation from Part 1, “Made by Me… or the Machine?”, where Melbourne-based lawyer Sharon Givoni explored how Australian artists are using AI to push creative boundaries — and what that means legally.
Can a Robot Really Be an Artist?
Sammy Yee, Traverse?, 2023
Let’s get straight into it.
Imagine Liv, a Melbourne illustrator, dreaming up a scene:
“A surreal coastal town with octopus-shaped trees, in the style of Shaun Tan.”
She feeds this prompt into Midjourney, then starts layering, and adding her own textures until she is of the view that the work is unmistakably hers. She sells a print. A critic asks:
“So, who actually made this?”
Here’s the Legal Twist:
If Liv just typed a prompt and picked her favourite AI image, she’s more curator than creator. But if she’s mixed, matched, and reworked the AI output – using it like a brush, not a ghost artist – she may well have a better shot at claiming copyright.
Australian Courts Have Made It Clear: Copyright Is for Humans
In the case of IceTV v Nine Network (2009), the High Court said originality isn’t about hard work alone – it’s about:
“independent intellectual effort.”
In other words, your mind needs to be on the canvas (or screen).
In Telstra v Phone Directories (2010), the court said that directories assembled mostly by computers, with minimal human input, didn’t make the cut for copyright protection.
So Where Does AI Fit In?
Well, if an AI tool spits out an image and you post it as-is, the law sees you as a selector, not an author.
But if you tweak, remix, or transform the AI’s work-layering in your own ideas and decisions-that’s when your “human fingerprint” shows up, and copyright might just follow.
The more you shape the work, the stronger your claim.
Si Yi Shen, A Tree, 2023
But It’s Still a Legal Jungle Out There
Australia’s Copyright Act was written long before artificial intelligence was even a twinkle in a coder’s eye. It was designed to protect human creativity—not machine output. So when it comes to AI-generated art, the law is still catching up.
At the moment, there’s no specific section in our Copyright Act that deals with AI and the courts haven’t yet ruled directly on whether works created with the help of AI qualify for copyright protection—or how much human input is “enough” to claim authorship .
That means artists, lawyers, and businesses are operating in a grey area. What’s protected? What’s not? How do you prove your contribution when the artwork was created through a mix of prompts, code, edits, and digital tools and the artists’ own signature?
Looking Overseas Doesn’t Provide a Crystal-clear Answer Either
In the United States, the Copyright Office has made it clear: works created entirely by AI, without meaningful human authorship, don’t get copyright protection. Meanwhile, the UK takes a slightly more flexible approach—under certain circumstances, it recognises copyright in computer-generated works, but even there, the rules are fuzzy and untested.
Joy Chiang, Another Life - Blue, 2022
So, What Should Artists Do?
For now, the best strategy is caution, documentation, and staying informed.
In the absence of clear answers, showing your human input—and making it visible in contracts, processes, and creative records—can make all the difference if questions of ownership or infringement arise.
Until the law catches up, here’s your creative armour:
Document your process: Save drafts, screenshots, and notes.
Use AI as a tool, not a substitute: Let your creativity lead.
Add your human touch: From composition to colour tweaks, make it yours.
Because in Australia, copyright still loves a little mess-the smudge of a fingerprint, the trace of a human hand.
Up next:
Moral Rights in the Age of AI: Can a Machine Steal Your Credit? (Part 3)
Joy Chiang, 'Coronation Series - Night’, 2022