AI-Generated Photos in Journalism: Legal or Not?

Many common digital practices remain legally ambiguous for those not well-versed in the field. Between well-established usages, legal gray areas, and recent regulatory changes, it can be challenging to determine what is allowed, tolerated, or prohibited. To provide clarity, BDM is publishing a series of articles exploring the legality of these practices, with insights from lawyers specializing in digital law and intellectual property.

Today, we examine the following question: Is it legal to use photos generated by artificial intelligence to illustrate an article or a post on social media?

To answer this, we have insights from Master Jérôme Giusti of Metalaw, and Master Yann-Maël Larher of YML Lawyer.

AI-Generated Images Flood the Web

AI image generators like Midjourney, DALL·E, or the one integrated into ChatGPT now allow anyone to create visuals on demand from a simple text description. Within seconds, one can obtain a realistic, artistic, or completely fantastical image. Moreover, the quality of these tools continues to improve, so much so that some media outlets have started using them to illustrate their content.

Not surprisingly, these new practices raise a host of questions, both political (what happens to traditional image-related professions with these automated, free tools?) and legal (on what basis do these AIs create their images?). Behind these generators lie vast databases, often filled with existing works, typically without the consent of their creators. This was highlighted by the recent controversy over the “Ghibli Style” reproduction by ChatGPT’s image generator, seen as fascinating by some and as appropriation by others. But to what extent is this practice actually compliant with the law?

Using AI to Illustrate Your Article: Legal, with Conditions

“It is legal to use an image generated by an AI like Midjourney or DALL·E to illustrate content,” explains Master Jérôme Giusti. However, certain precautions are necessary. For instance, “using an AI-generated image can be problematic if it includes, even partially, elements from pre-existing works protected by copyright, without permission,” warns Master Yann-Maël Larher.

Disney and NBC Universal recently sued Midjourney for “generating infinite unauthorized copies of works” like Darth Vader or the Minions, illustrates Master Larher.

Protected content includes photographs, artworks, or portraits of real people. On this last point, Yann-Maël Larher reminds us that “Article 226-8 of the Penal Code punishes with up to one year of imprisonment and a fine of €15,000 the act of publishing a montage made with the words or image of a person without their consent, unless it is clearly a montage or it is expressly stated.”

Finally, Master Giusti emphasizes that “in cases of widespread distribution, the European regulation on AI requires that the public be clearly informed that the image was created by an AI.” In other words, the practice is legal, but one must own up to it!

AI-Generated Image: Can Intellectual Property Be Claimed?

When a creation does not incorporate any element protected by copyright—thus no reproduction of characters, artworks, or identifiable individuals—is it possible to claim copyright? On this type of content, Jérôme Giusti is clear: “these images are not protected by copyright, as they do not meet the criteria of originality.” Indeed, the creation is not seen as the result of a human creative process, but as the outcome of an automated process.

The use of these images is also not entirely free, as it can be governed by the general conditions of use of the tools. “Generative tools like Midjourney or DALL·E set their own terms of use, which may include restrictions on the commercial or public exploitation of the generated images,” specifies Master Yann-Maël Larher.

Another point to consider: platforms often reserve extensive rights over the generated content. For instance, Google states in its terms of use that the user retains their intellectual property rights, but grants the platform a global license to use, host, reproduce, modify, or create derivative works from the provided content. “This type of clause can pose risks of technical or algorithmic reuse, even if you theoretically retain control,” adds Master Larher.