On AI image copyright the short answer is this: in most cases you can use AI images commercially, but they aren't necessarily protected by copyright, and they don't protect you if they copy other people's trademarks, works or faces. In Italy, Law 132/2025 made clear that protection requires human creative input. Here's what that means for a brand, what the tool terms say and what to ask your agency.
Three questions to keep apart
When a brand asks "can I use this AI image?", it's really asking three different questions:
| Question | What it depends on | Typical answer |
|---|---|---|
| Do I have the right to use it? | The tool's terms of service and your agency contract | Usually yes, on paid plans and with a clear assignment in the contract |
| Is it protected by copyright? | How much human creative input there is | It depends: single-prompt output is weak, directed and reworked output is stronger |
| Does it infringe someone else's rights? | What it shows: trademarks, works, real people | The most concrete risk, and no tool removes it |
Who is the author of an AI image in the EU and Italy
In the EU a work is protected if it is the author's own intellectual creation, the originality test set by the Court of Justice (Infopaq judgment, C-5/08). Italy has made it explicit for AI: Law 132/2025, in force since 10 October 2025, amended Article 1 of the Italian copyright law. It now protects works of human creativity, including when created with AI tools, as long as they result from the author's intellectual work (Gazzetta Ufficiale).
In plain terms: an image from a single prompt, downloaded as is, is unlikely to be a protected work. An image where a person decided the concept, composition and light, then selected, corrected and edited the result has a stronger case. The law doesn't say exactly where the line is, and commentators flag it as an open question.
In the United States the line is similar and sharper: the Copyright Office requires a human author (U.S. Copyright Office source), and in March 2026 the Supreme Court declined to review the Thaler case, leaving that rule in place (Mayer Brown source).
What the tool terms say
Copyright isn't the only source: contracts with the model provider matter too. Two examples:
- OpenAI states in its terms of use that the user owns the output, to the extent permitted by law, and warns that similar output may be generated for other users (OpenAI terms).
- Midjourney gives subscribers ownership of their assets, but requires companies with more than $1 million in annual revenue to be on a Pro or Mega plan (Midjourney terms).
Two practical consequences. First, "you own it" in the terms of service doesn't mean "it's protected by copyright": the contract governs your relationship with the provider, not your protection against third parties. Second, terms change: whoever produces for you should know which plan and which version of the terms each file was generated under.
"Having the right to use an image and being able to defend it from copycats are two different things."
The real risk: other people's trademarks, works and faces
For a brand the most frequent problem isn't who owns the image, but what's in it.
- Third-party trademarks. A recognisable logo on a bag, a car or a background is still a trademark. In Getty Images v Stability AI, decided in the UK in November 2025, the judge found a limited infringement precisely because the Getty watermark appeared in some outputs (Cleary Gottlieb source).
- Protected works and characters. Asking for something "in the style of" an artist isn't a copy in itself, but reproducing a recognisable character, illustration or photo is.
- Real people's faces and voices. In Italy a person's likeness can't be used without consent (Article 10 of the Civil Code and Articles 96-97 of the copyright law). Law 132/2025 also introduced a criminal offence for the unlawful dissemination of AI-generated or altered content, Article 612-quater of the Criminal Code (Diritto.it source).
- Other people's products. A model can "invent" an object very close to a competitor's product. Check for it the way you would on a set.
We go deeper on faces in image rights and virtual models: that's why in our projects digital avatars are invented people or consensual digital twins.
What to ask your agency before signing
- Which tools and plans do you use? They must allow commercial use for a company of your size.
- What do you assign to me in the contract? An explicit assignment or licence of the rights in the delivered files, for the channels and countries where you'll use them.
- What source material do you start from? Your product photos and assets are the safest base; third-party images used as references need permission.
- Do you document the creative work? Briefs, concepts, storyboards and retouching steps are the evidence of human input.
- Do you check for trademarks and likenesses? Every image should be reviewed for logos, lettering, products and faces that shouldn't be there.
- How do you handle labelling? Since 2 August 2026 the AI Act requires transparency on certain content: see AI Act and labelling AI content.
How we work
At DigitalX Studio creative direction comes before generation: approved brief, concept and storyboard, then several AI models chosen per shot, a check against the real product and fixes by hand or in CGI. We start from the client's photos when they exist, label AI content where required and only use invented people or consensual digital twins. It's the method described on our AI creative agency page.
Frequently asked questions
Can I use AI-generated images commercially?
Usually yes, if the tool allows it on your plan and the contract with whoever produces them assigns you the rights. The remaining risk is that the image contains other people's trademarks, works or faces, which needs checking.
Are AI-generated images protected by copyright in the EU?
Only if they are the author's own intellectual creation, which requires human creative input. Italy's Law 132/2025 states this explicitly. Single-prompt output is unlikely to qualify.
Who owns an image made with Midjourney or ChatGPT?
As between you and the provider, usually you: OpenAI and Midjourney say so in their terms, with conditions. Midjourney requires a Pro or Mega plan for companies above $1 million in revenue. That doesn't guarantee copyright protection against third parties.
Can I use a celebrity's face in an AI image?
Not without their consent. In Italy likeness is protected by the Civil Code and the copyright law, and Law 132/2025 introduced a specific offence for unlawfully disseminating AI-generated or altered content.
What should I ask an agency that produces AI images?
Which tools and plans it uses, what it assigns to you in the contract, what source material it starts from, whether it documents the creative work, whether it checks for trademarks and likenesses, and how it handles AI Act labelling.