Part 3: Moral Rights in the Age of AI – Who Really Owns the Soul of the Artwork?
As AI becomes more embedded in the creative process, Australian artists are asking: who owns copyright when the resulting work is a collaboration between mind and machine?
Gavin Barnett and Dan Walkington, 'Nebulas', 2024
Imagine in a local gallery, a visitor gazes at a new artwork called Dreaming in Code, captivated by its style.
Yet, the “artist” behind it never touched a brush - the work was generated with Midjourney, tweaked in Procreate, and printed on canvas by an art student using text prompts.
The question to be asked is: Whose work is it, and who deserves recognition or protection if the work is later misused, modified, or misattributed?
This brings us to the world of “moral rights”.
Moral rights in Australia, set out in the Copyright Act 1968 (Cth), are personal and non-economic. They belong only to human authors and arise automatically. These rights are:
The right of attribution: to be named as the author.
The right of integrity: to prevent changes that harm your honour or reputation.
The right against false attribution: to stop someone else being credited as the author.
The thing is, because AI isn’t human, moral rights (like copyright) don’t apply to works created solely by machines.
If an artwork is entirely AI-generated, it falls outside Australia’s moral rights regime. There’s no author, so there are simply no moral rights.
If an artist uses AI as a tool, generating images, then editing, layering, or reworking them, the situation becomes more complex. The more independent intellectual effort the artist contributes, based on the law today, it would seem that the stronger their claim to authorship and, therefore, moral rights.
When it comes to defining what independent intellectual effort actually means it’s really just a fancy legal way of saying: you need to put your own creative thinking and hard work into your art. It’s not enough to just press a button or use an AI tool, you have to add your own ideas, style, or unique touches.
In other words, simply clicking “generate” on an AI tool isn’t enough.
Simon Burgin, Turbulence State 03, 2023
How much human input is enough, I hear you ask? Ah, now that’s the million-dollar question (even for lawyers!)
Right now, there’s no clear rule or magic number. The line between “substantial” and “not quite enough” is blurry and still being worked out in courtrooms and legal debates.
So, the more you can show your unique vision and hands-on involvement, sketches, edits, creative decisions, the stronger your claim as the true author of the work.
Style imitation is another concern.
AI models trained on countless images found on the internet can closely mimic the styles of prominent artists. Sometimes, AI-generated works are tagged with an artist’s name, “Inspired by…” or “In the style of…”, even when the artist had no involvement.
This can amount to false attribution, a breach of moral rights under Australian law, but proving reputational harm or audience confusion could be difficult. There’s no requirement for AI tools to disclose their training sources, leaving artists to defend their identity in a shifting digital landscape.
Moral rights also protect the integrity of an artwork.
If AI is used to “complete” or alter an existing human-made piece, the original artist may have grounds for complaint if the changes harm their reputation.
An Indigenous Australian artist discovered that an AI tool, trained on her artwork without permission, was generating derivative designs mimicking sacred motifs.
These AI works distorted her cultural narrative and were sold commercially, raising both moral rights and Indigenous Cultural Intellectual Property issues. However, Australia lacks legal protections for Indigenous works like this, so remedies can be limited.
Even though your cultural stories, symbols, and styles are deeply meaningful and unique, the law may not fully protect them from being copied, distorted, or misused by AI.
In this case, the artist’s sacred motifs were taken without consent, repurposed by an AI tool, and commercialised, yet there were limited legal options available.
If you use AI in your own creative practice, or if your work is being fed into AI systems without your knowledge, it’s important to understand where your rights begin, and where they currently fall short.
The bits made entirely by AI, without your creative input, aren’t protected under current Australian law.
So, the more you can show your own creative process, the better your chances of being recognised and protected as the true author of your work.
If you’re using AI in your art, treat it like a tool, not a replacement.
Make sure your own creative touch shines through. That means putting in real effort and showing your unique style, not just clicking “generate.”
Georgie Pinn, 'Organ', 2023
Keep a record of your process. Save drafts, screenshots, and notes so you can prove where your ideas came in. It helps build your case if there’s ever a question about who really made the work.
Be upfront about what’s AI-generated.
Clearly label it, and when working with clients, spell out in your contracts which bits are AI-assisted and which are all you.
If someone copies your style or uses your name without permission, take screenshots, gather evidence, and get legal advice. And stay informed, this area of law is moving fast, so it pays to keep up to date.
Here’s the bigger issue. A lot of AI tools are trained on huge datasets scraped from the internet.
That includes artists’ work, maybe even yours, used without consent or credit.
One Sydney photographer, for instance, found her images popping up in AI-generated stock photos, with no acknowledgment and no payment.
Right now, the law isn’t offering much help. So until it catches up, artists need to be proactive. Document your creative input. Push for transparency. Know your moral rights and be ready to speak up if your work is misused, especially if your reputation’s at stake.
Yes, it’s a bit of a legal jungle. But here’s the thing: while AI can mimic technique, it can’t fake vision. That spark, that soul of the artwork, still belongs to you.
Jonathan Puc, 'Valeria', 2023
Email: info@iplegal.com.au
Website: www.sharongivoni.com.au
Disclaimer: This article is general in nature and not legal advice. Always seek tailored legal advice for your particular circumstances. The legal landscape is evolving and information may change as new cases arise.