AI & Creative Expression

With AI technologies rapidly changing the creative landscape in which artists work, the boundaries of intellectual property and creative ownership are becoming increasingly blurry. This article expands on the topics discussed at a webinar presented by Vandana Taxali of Entcounsel for the Brampton Arts Organization and ALAS on April 23, 2026.

This article is for artists across all creative disciplines and career stages — provides real-world examples, Q&A, and actionable tips to help you navigate AI advancements while protecting your creative rights. Whether you are exploring AI as a creative tool or are concerned about your style being imitated, this session with entertainment lawyer Vandana Taxali will help you gain clarity on how current laws and technologies affect your work.

About ALAS (Artist Legal Advice Services)

For 40 years, Artists' Legal Advice Services (ALAS) has worked to empower Ontario's creative community by providing access to summary legal advice, information, and education. ALAS is operated by volunteer entertainment and intellectual property lawyers, fellow creators, and law students who generously donate their time to help provide advice to those who may not be able to access more expensive alternatives. ALAS's core programs include the ALAS Legal Clinic, legal education events addressing diverse topics in art and law, and a growing database of legal resources for creators.

Outline

• How intellectual property and copyright apply to creative work in Canada
• Whether AI-generated work can be copyrighted, and the key cases shaping that answer
• How AI training is impacting artists' existing work, and how to check if yours is affected
• Which AI tools are safe to use in your practice, and which ones leave you legally exposed
• Practical strategies to register, protect, and monitor your work
• Common pitfalls and how to avoid them
• Where to get free legal help

Top 10 Tips to Protect from Unauthorized AI Usage

• Copyright in Canada is automatic the moment you create a work. CIPO registration is not required, but it provides strong evidence in court.
• Pure AI output is likely not copyrightable in Canada (CCH skill-and-judgment test) or in the United States (Thaler v. Perlmutter, 2025-2026).
• AI-assisted work with meaningful human contribution can be registered. Disclaim the AI portions and claim the human selection and arrangement.
• Your work is probably in LAION-5B if it was online before 2022. Check haveibeentrained.com.
• Use indemnified AI tools (Adobe Firefly, Bria AI, Getty) for commercial client work. Do not deliver final client work made with Midjourney or DALL-E consumer without a written risk-transfer.
• Style is not copyrightable, but moral rights, trademark, passing off, and personality rights may reach some AI uses.
• Install Glaze and Nightshade on your portfolio. Opt out at haveibeentrained.com.
• Register your most important works with CIPO at $50 per work online.
• Canada has no comprehensive federal AI law today. AIDA died in January 2025. Protect yourself through copyright, contracts, and self-help tools.
• If you need more advice, you can: (i) book a free 30 minutes summary legal meeting for summary legal advice with ALAS for your specific situation at alasontario.ca; (ii) contact CARFAC; or (iii) consult a lawyer.

Part 1 · Understanding IP and Copyright

Objective 1 — Understand intellectual property (including copyright) and how it applies to creative works.

Every creative work carries two separate legal rights. First, the PHYSICAL right — ownership of the tangible object or digital file itself. Second, the INTANGIBLE right — the intellectual property (copyright) in the work. These two rights are independent and can be held by different people.

You can sell the physical painting while retaining the copyright. You can licence the copyright while keeping the original. You can sell an NFT (which transfers the digital file or token) without transferring the underlying copyright. The Copyright Act requires any transfer of copyright to be in writing, signed by the owner — section 13(4). Selling the physical object does not, by default, transfer copyright.
This distinction is why so many NFT buyers believe they acquired rights they did not actually have, and why artists can continue licensing work they no longer physically own.

Definitions

Copyright. Your automatic right to control how your creative work is reproduced, distributed, performed, and adapted. Arises the moment you create the work — no registration required in Canada. Covers paintings, drawings, photos, videos, music, writing, and software. Term: life of the author plus 70 years.

Moral rights. Personal rights of the author — attribution (the right to be credited), integrity (the right to prevent modification prejudicial to honour or reputation), and association (the right not to be associated with causes or products without consent). Cannot be assigned, only waived in writing. Silence is not a waiver in Canada. See Copyright Act ss. 14.1 and 28.2.

Moral rights matter specifically in the AI context. When an AI model ingests your work without consent and then generates output derived from it, multiple moral rights concerns arise: the model does not credit you (attribution right); the resulting outputs may modify or distort your work in ways prejudicial to your honour or reputation (integrity right); the output may associate your style with causes, products, or messages you do not endorse (association right).

Moral rights give artists an additional legal tool beyond straight copyright infringement when AI tools mimic or modify their work. These rights are also inheritable for the full copyright term, which is why the Kim Jung Gi case (AI model released four days after his death) implicates moral rights of his estate.

Trademark. A word, name, symbol, sound, or design that distinguishes your goods or services in the marketplace. Protects brand identity. Registered with CIPO under the Trade-marks Act. Term is ten years, renewable indefinitely.

Industrial design. Protects the visual and aesthetic features of a finished product — shape, configuration, pattern, ornament. Registered with CIPO. Term up to ten years. Used by furniture designers, product designers, jewellery makers, and fashion designers.

Patents. A twenty-year monopoly on a new, useful, and non-obvious invention. Filed with CIPO. Rarely relevant for most artists, but protects novel artistic mechanisms, tools, or inventive processes.

Trade secrets. Confidential commercial information that has economic value because it is not generally known. Customer lists, formulas, methodologies. Protected by contract, common law, and statute. Lasts as long as secrecy is maintained.

Fair dealing. A defence to copyright infringement for specific purposes — research, private study, education, parody, satire, criticism, review, and news reporting. Narrower than the US 'fair use' doctrine. See Copyright Act s. 29.

Fair dealing is not an easy defence to prove. Even if you believe you qualify, you can still be sued — and litigation is expensive regardless of outcome. Under CCH v. Law Society, 2004 SCC 13, courts apply six factors to determine fairness: (1) the nature of the work copied, (2) the amount and significance of the portion copied, (3) the use made of the copy, (4) alternatives to the dealing, (5) the degree to which the copy competes in the market with the original, and (6) the availability of a licence from a collective society (SOCAN, AVLA, Access Copyright, etc.).

Both conditions must be met: (a) the dealing must be fair under the factors above, AND (b) the dealing must be for one of the enumerated purposes in the Act. A genuine parody qualifying under s. 29, with proper attribution, that does not substitute for the original in the market, has the strongest defence. Commercial uses that compete with the original face a much harder test.

Personality and publicity rights. The right to control commercial use of your name, likeness, voice, and image. Common-law in Ontario (Krouse, Athans, Gould Estate). Statutory in British Columbia, Manitoba, Saskatchewan, and Quebec. Increasingly relevant to AI voice cloning and deepfakes.

Copyright - A Bundle of Rights

Copyright is not one right — it is a bundle of exclusive rights granted by section 3 of the Copyright Act.

Under section 3, the copyright owner has the sole and exclusive right to do any of the following, and to authorize others to do any of the following: reproduce the work, publish the work, perform the work in public, communicate the work to the public by telecommunication (including internet transmission), translate, adapt, and create derivative works from the original. These rights are independent — you can licence reproduction but not performance, or you can licence publication but not derivative works.

Copyright infringement occurs when someone does any of these acts, or authorizes them, without the copyright owner's consent. The test is whether the whole or a 'substantial part' of the work was copied. Substantial is assessed case-by-case — it is not a fixed percentage. Even a small portion can be substantial if it represents the heart of the work. This is the 'substantial similarity' test applied by Canadian courts.

Key Copyright Act sections

Copyright Act

• s. 3 — Scope of copyright — reproduction, publication, performance, communication, translation, adaptations. 5 — What qualifies for protection; author must be a citizen or ordinary resident of a treaty country
• s. 6 — Term of copyright — life of author plus 70 years (since Dec 30, 2022)
• s. 13(1) — Author is first owner of copyright
• s. 13(3) — Employee exception — employer owns works made in course of employment
• s. 13(4) — Assignment must be in writing signed by owner — NFT, digital file, or physical sale does not transfer copyright
• s. 14.1 — Moral rights — attribution, integrity, association
• s. 14.2 — Term of moral rights — inheritable for full copyright term
• s. 28.2 — Infringement of moral rights — integrity (prejudicial modification)
• s. 29 — Fair dealing — research, study, education, parody, satire
• s. 29.1 — Fair dealing — criticism or review with attribution
• s. 29.2 — Fair dealing — news reporting with attribution
• s. 29.21 — Non-commercial user-generated content — the mashup/remix exception
• s. 38.1 — Statutory damages — $500-$20,000 per work for commercial infringement
• s. 41.25 — Notice and notice regime — Canadian ISP takedown procedure
• s. 53 — Registration certificate as evidence of ownership

Using AI in your creative practice

Legal and ethical considerations when using AI as a tool in your creative practice.
Indemnity means the AI provider will legally defend you and pay damages if a third party sues over your generated output. Without it, you bear all legal risk personally. For commercial client work, use only tools with indemnity. For ideation, any tool is fine.

Safer AI Models (but double check their terms)

• Adobe Firefly (paid Creative Cloud) — adobe.com/products/firefly.html — capped indemnity; the default choice for most individual artists; from CA$14 per month
• Bria AI — bria.ai — full legal indemnification, licensed-only training; pay-per-image or from $39 per month
• Getty Generative AI — gettyimages.com/ai/generation — full commercial indemnification; licensed-only training
• iStock AI — istockphoto.com/ai-image-generator — Getty family, more affordable at approximately $29 per month
• Shutterstock AI — shutterstock.com/ai-image-generator — subscriber indemnification
• Moonvalley Marey (video) — moonvalley.ai — the only safe AI video option at individual tier
• Microsoft Designer (M365 Copilot Business) — designer.microsoft.com — uncapped indemnity on commercial tier

The following AI models may not be safe to use (and check their terms of service)
Midjourney, ChatGPT Plus (DALL-E), Stable Diffusion, FLUX, Ideogram, Leonardo, Playground, Krea, Lexica, Canva Magic Media, Runway consumer, Deep Dream Generator, AISEO Art, Vectr, AutoDraw, and Framer. They may be appropriating copyright protected work as it's not clear so please double check. These models also do not offer an indemnity.

AI + Art Examples

Artists and tools that illustrate what AI can do in creative practice. Useful as reference points when talking about AI with clients or audiences.

• Portrait of Edmond de Belamy (2018) — Obvious (Paris collective) — Caselles-Dupré, Fautrel, Vernier. First AI-generated artwork sold at Christie's (October 2018) for $432,500. Created using a GAN. Notably no one registered copyright — and under Thaler and CCH, it likely could not be registered.

• Refik Anadol (Turkish-American, b. 1985) — refikanadol.com — 'WDCH Dreams' (2018) projected AI-generated visualizations onto Frank Gehry's Walt Disney Concert Hall using 45TB of LA Philharmonic data. 'Unsupervised — Machine Hallucinations: MoMA' (2022-2023). 'Living Architecture: Casa Batlló' (2022) raised $1.38M in NFT sales. 'Machine Hallucinations' sold for $277,200 at Christie's Augmented Intelligence auction (February 2025).

• Mario Klingemann (German artist, b. 1970) — pioneer of neural-network art for over a decade. 'Memories of Passersby I' (2018) became the first AI artwork ever sold at Sotheby's, fetching £40,000. Creates continuous real-time 'portraits of non-existent people' using GANs trained on 17th-19th century portraits.

• AI-Da (robot artist, unveiled 2019) — ai-darobot.com — world's first ultra-realistic robot artist. Uses facial recognition, AI algorithms, and a robotic arm system to draw and paint. Exhibited at Abu Dhabi Art 2019 and major institutions since.

• Christie's 'Augmented Intelligence' auction (February 20 - March 5, 2025) — Christie's first dedicated AI art auction. Proceeded despite an open letter signed by 6,500+ artists demanding cancellation over training-data concerns. Raised approximately $728,000 across 28 lots.

Questions from the live webinar

Questions asked by attendees during the April 23, 2026 Power Hour session, with cleaned-up answers for reference.

1. NFT and copyright transfer   
   
   Question: Does selling an image as an NFT equal an assignment of copyright? (Laura).

   
   

   Answer: An NFT is a digital representation of the work — the token. Copyright is a separate right.

   
   Every artwork carries two distinct legal rights: the physical right to the tangible object or digital file, and the intangible intellectual property right (copyright) in the work itself.
   
   Selling an NFT transfers the token, not the underlying copyright.
   Under section 13(4) of the Copyright Act, any transfer of copyright must be in writing and signed by the owner. Minting or selling an NFT does not satisfy that requirement. Unless your NFT sale agreement explicitly assigns copyright in writing, you retain it. The same principle applies to physical works: the buyer of a painting gets the canvas, but the artist keeps the copyright unless the sale agreement transfers it.

   
   If you are selling NFTs, specify in writing what rights transfer and what rights you retain. If you are buying NFTs, do not assume you have acquired IP rights unless the sale expressly grants them.

   
   

    

2. AI as a writing framework  
   
   Question: If I used AI as a structure or framework but wrote the story and created the characters myself, is the work copyrightable? (Olivia). It depends on three factors, analyzed case-by-case.

   
   Answer:
   First: is the human-authored portion independently copyright-protectable? Under CCH, Canadian copyright requires originality — skill and judgment. Not creative genius, but meaningful intellectual contribution. If you wrote the plot, developed the characters, and shaped the narrative yourself, those elements attract copyright protection.

   
   Second: which AI model did you use? Different platforms have materially different terms of service, ownership rules, and indemnity provisions. Microsoft Copilot, ChatGPT, Midjourney, and Adobe Firefly each have a different legal posture. Review the terms of the specific platform before relying on AI-assisted work commercially.

   
   Third: how much did the AI contribute? If you created the fundamental work and used AI as an accelerator — for pacing, proofreading, layout — your original contributions retain copyright. If the AI took over creative decisions and shaped the final expression, the balance shifts and the work may not qualify as yours.

3. 
   Document your creative process. Keep drafts, outlines, character notes, and original writing. When registering with CIPO, disclose the AI-assisted portions and claim the human-authored selection and arrangement. This follows the Kashtanova and Shupe pathway from the US Copyright Office, which Canadian courts are likely to adopt.

   
   

4. Selling licensed originals
   
   Question: I've licensed my work. Can I still sell the originals? (Jackie). Yes, generally — subject to what your specific licence says.

   
   Answer: Your copyright and your physical work are separate legal interests. You can license the copyright — granting someone the right to reproduce or publish the work — while retaining ownership of the physical original. Selling the physical painting does not affect your licence unless the licence expressly restricts physical sale.

   
   Always read your licence agreement. Some licences include restrictions — a requirement to retain the original until the licence expires, or a prohibition on sale to competitors. These restrictions are unusual but not uncommon.

   
   Review the licence, confirm no restrictions on physical sale, and disclose the existing licence to the buyer so they understand they are acquiring the physical work only — not the right to reproduce the image. If the licence is exclusive, give the licensee advance notice of the physical sale.

   
   

5. Choosing the right AI model 
   
   Question: Why does which AI model you use matter? (Stacy).
   
   Answer: The choice of AI model directly determines your legal exposure. Four issues vary significantly across platforms.

   
   Indemnity. Adobe Firefly, Bria AI, Getty Generative AI, Microsoft Designer commercial, Google Imagen, Amazon Bedrock, and Moonvalley offer full or capped indemnity — the provider defends you and pays damages for third-party IP claims. Midjourney, ChatGPT Plus, DALL-E consumer, Stable Diffusion, FLUX, Ideogram, Leonardo, and Playground offer no indemnity. You bear the full legal risk personally.

   
   Training data provenance. Adobe Firefly, Bria AI, and Getty train only on licensed content. Stable Diffusion, Midjourney, and most open-source models train on scraped web content. If the training data infringes copyright, that infringement can carry forward into your output — and the original rightsholder can sue you, not the AI company.

   
   Output ownership. Platforms vary: some grant user ownership (Midjourney paid tiers); some retain ownership for the provider; some make no clear claim. Critically: output ownership is not the same as copyright protection. An AI provider saying 'you own the output' means only that the provider will not claim against you. It does not mean the output is copyrightable.
   Usage rights. Commercial use, personal use, and free-versus-paid permissions vary by platform.

   
   Before using any AI model for commercial work: read the terms of service (especially the indemnity clause), verify the training data is licensed if the work is brand-sensitive, confirm commercial use is permitted on your tier, and keep a record of which model and tier you used.

   
   

6. User liability for AI training data  
   
   Question: If an AI's training data has IP issues, is the user liable? (Attendee). It depends on the AI provider's terms of service and indemnity structure. This is the most important commercial question to ask.

   
   Answer: If the provider offers a meaningful indemnity — Adobe Firefly, Bria AI, Getty Generative AI, Microsoft Copilot commercial, Google Imagen, Amazon Bedrock — the provider takes on the legal defence and pays damages for third-party IP claims on the output. Your risk is contractually transferred to the provider.
   If the provider offers no indemnity — Midjourney, DALL-E consumer, Stable Diffusion, FLUX, most open-source models — you bear full personal liability. If a third-party rightsholder sues over output that resembles or derives from their work, you are the defendant, not the AI company. Midjourney's terms even require that you indemnify them.

   
   Indemnity is not absolute. Providers typically impose conditions: good-faith use, content filters enabled, no intentional infringement. Dollar caps apply. Review the specific terms before relying on indemnity.

   
   Before using any AI model commercially, confirm the indemnity coverage — scope, conditions, cap, exclusions. If the provider offers no indemnity, do not use the tool for final client deliverables. Use it only for ideation, moodboards, and brainstorming. If a client insists on using a no-indemnity tool for final work, require a written risk-transfer from the client.

   
   

7. Ownership of AI-generated derivatives
   
   Question: If my work is used to train a model and someone prompts the model to create a new piece from that training, who owns the copyright? (Andrew). This is unsettled law and the central question in active litigation on both sides of the border.

   
   Answer: Three overlapping issues arise: the training stage, the output stage, and the commercial use of the output.

   
   Training stage: if your work was copied or scraped to train the model without your permission, that reproduction may itself constitute copyright infringement. This is the core theory in Andersen v. Stability AI (US), Bartz v. Anthropic (settled for $1.5 billion in August 2025), Toronto Star v. OpenAI (Canada), MacKinnon v. Meta (BC), and Getty v. Stability AI (UK). The UK High Court ruled in November 2025 that the trained model itself is not an 'infringing copy,' but did not decide the training step.

   
   Output stage: pure AI output likely cannot be copyrighted under Canadian law (CCH) or US law (Thaler, affirmed by the DC Circuit March 2025, cert denied). A prompt alone does not create authorship. If the user meaningfully contributed — selection, arrangement, modification — a compilation copyright claim may attach.

   
   Commercial use: if the AI output substantially resembles or reproduces protected parts of your original work, commercial use may expose that user to direct infringement liability, separate from the training-stage claim.
   Nobody clearly owns the output as copyright, but you may have infringement claims against the AI company that trained the model on your work without authorization. The Bartz $1.5 billion settlement indicates courts and defendants are beginning to treat unconsented training as meaningfully compensable. Expect 1-3 years for further clarity.

   
   

8. Social media terms and AI training
   
   Question: Can permission to train AI on my work be given through social media terms of service? (Celine).
   
   Answer: Yes — and this is a critical risk most artists do not appreciate until it is too late.

   
   When you sign up for a platform — Instagram, Facebook, X, TikTok, Adobe Stock, various AI apps, LinkedIn, Clubhouse — you agree to terms of service. Many of those terms grant the platform broad rights over content you upload, including rights to use your work for AI training, model improvement, and derivative purposes. These terms typically survive even if you later delete your account or remove the content.

   
   Meta (Instagram and Facebook) updated its terms in 2024 and 2025 to give it training-data rights over user content. X (formerly Twitter) similarly updated its terms to allow training on user posts. Adobe Stock has faced multiple class-action suits challenging its training practices on contributor content. ChatGPT, Midjourney, and other AI tools retain prompts and uploads for training purposes under their standard free and paid tiers.

   
   Practical guidance: (a) before uploading valuable work, read the platform's terms of service and look for 'AI,' 'machine learning,' 'derivative works,' and 'training' provisions; (b) if the terms grant rights you are not willing to give, do not upload — or use a different platform; (c) where possible, watermark or Glaze/Nightshade treat your uploads; (d) for your most valuable works, host on platforms that explicitly do NOT train on user content (or on your own website with 'no AI' notices and scraping protections); (e) check whether the platform honours a Do Not Train opt-out (through haveibeentrained.com or similar registries).

   
   

9. AI as a creative tool versus AI as an author 
   
   Question: Why is AI treated differently from other tools like computers, printers, CNC machines, or letterpress blocks? (Sarab). The answer depends entirely on whether AI is being used AS A TOOL or being claimed AS AN AUTHOR. The former is not treated differently; the latter is.

   
   Answer: AI as a TOOL: if you are making creative decisions and using AI to execute them — selecting inputs, iterating on outputs, modifying, arranging, curating — AI is analogous to any other creative medium. A photographer using a digital camera, an illustrator using Photoshop, a designer using a CNC router, a printer using a letterpress — all produce copyright-protected work because the creative skill and judgment reside with the human operator. AI used this way is no different: your work retains copyright in the human-authored contribution.

   
   AI as an AUTHOR: this is where AI is legally different. Canadian copyright law, under section 5(1) of the Copyright Act, requires the author to be a citizen or ordinary resident of a treaty country. Section 6 provides copyright term based on the 'life of the author' plus 70 years — machines do not die. Sections 14.1 and 28.2 create moral rights — rights of integrity, attribution, association — which only humans can hold. Together, these provisions strongly imply that the author must be a human. Pure AI output, where the human contribution is merely typing a prompt, cannot satisfy this human-authorship requirement.

   
   The Rafik Anadol model works: he designs the algorithms, curates the datasets, makes aesthetic decisions, trains custom models, and crafts the output. That is human authorship using AI as a medium — copyright protection likely attaches. The 'prompt and publish' model fails: the creative decisions belong to the AI. Same tool, radically different legal result, because of the level and nature of human contribution.

   
   Practical principle: you can use AI and retain copyright in your meaningful human contribution. You cannot treat the AI itself as the author.

   
   

10. Canadian platforms for documenting artwork 
    
    Question: Is there a Canadian platform for documenting artwork? (Laura). The options today are limited — CIPO copyright registration, self-documentation, and emerging alternatives like Artcryption (currently in beta).

    
    Answer: CIPO copyright registration: the official Canadian option is the Canadian Intellectual Property Office at $63 per work online. This provides a statutory presumption of ownership under section 53 of the Copyright Act, which is strong evidence in litigation. The drawback: for prolific artists creating many works, the per-work cost adds up quickly.

    
    Artcryption (in beta): my Canadian platform, in development specifically to address this gap. The goal is a central place where creators can register works, set AI-usage permissions, document provenance, and prevent AI bots from scraping the content. We are targeting a much lower price point than CIPO — aiming at around $5 per work, potentially a free tier — and expect to launch beta with user testing. (Disclosure: Artcryption is co-founded by the presenter.).

    
    Self-documentation alternatives: most artists today use Instagram, Facebook, Twitter, or personal websites. These work but have significant drawbacks: (a) you are subject to the platform's terms of service, which often include training-data grants; (b) they are vulnerable to AI scraping; (c) they offer no formal legal presumption of ownership. Keep your own dated records: raw files, sketches, drafts, Procreate timelapses, version history, email timestamps.

    
    Museum and gallery documentation: major institutions like the Art Gallery of Ontario maintain their own internal documentation systems using press articles, exhibition records, and institutional libraries. These are not artist-accessible tools.

    
    Practical recommendation: for your most important works, register with CIPO ($63 is cheap insurance for a lifetime work). For regular documentation, keep your own dated records and consider Artcryption once launched. Never rely solely on social media as your documentation strategy.

    
    

11. AI-enhanced illustrations and partial copyright    
    
    Question: If I write a story and create a rough illustration, then use AI to enhance the illustration, is the whole work copyrightable? (Charlene). Partially. The human-authored portions are copyrightable; the AI-enhanced portions are not separately copyrightable.

    
    Answer: Copyright protection in Canada requires originality through skill and judgment — not creative genius, not technical skill, but meaningful human intellectual contribution (CCH v. Law Society). A 'rough' or 'poor' illustration is not disqualified. If you exercised skill and judgment in creating it — making choices about composition, subject, form, line — it attracts copyright protection regardless of its aesthetic quality.

    
    When AI enhances that illustration, the enhancements themselves are not separately copyrightable under current law. They are AI-generated and fail the human-authorship requirement. But your original illustration underneath retains its copyright.

    
    The practical question becomes: how much of the final work remains your original contribution, and how much is AI-generated? If your rough illustration is the foundation and AI enhanced details (colour, texture, rendering), your copyright attaches to the underlying work and to the human choices you made about the enhancement. If AI substantially transformed the work — replacing your composition, subject, or fundamental structure — the balance may shift.

    
    Registration guidance: when registering with CIPO, follow the Kashtanova / Shupe disclosure model. Identify which elements were AI-generated (for example: 'AI enhancements to colour and texture, approximately 10% of the finished work') and claim copyright in the human-authored portions (the story, the original illustration, the selection and arrangement). Disclosure is not a weakness — it is good practice and protects you from later challenges.

    
    Same principle applies on Artcryption: we ask creators to identify what portions were AI-generated, what was human-authored, and to record the creative process. Transparency in documentation makes your rights defensible.

    
    

12. Avoiding IP issues with AI-generated content 
    
    Question: What should an author using AI-generated content do to avoid IP issues? (Paul).
    
    Answer: Three-step protocol for any commercial use of AI-generated content.

    
    STEP ONE: read the AI platform's terms of service — specifically the indemnity provisions. Look for language that says 'Adobe will defend you' or 'we will pay damages if a third party claims infringement.' If the platform provides a complete indemnity, it has accepted the legal risk of its training data and you can use it commercially with relative confidence. If the platform disclaims all warranties and makes no indemnity commitment, it has pushed the risk onto you.

    
    Platforms that offer indemnity: Adobe Firefly (paid Creative Cloud), Bria AI, Getty Generative AI, Microsoft Designer / Copilot (commercial tier), Google Imagen (Vertex AI), Amazon Bedrock (first-party models), Moonvalley Marey (video). Use these for commercial work. Please double check this.

    
    Platforms that do NOT offer indemnity: Midjourney (any tier), ChatGPT Plus / DALL-E consumer, Stable Diffusion, FLUX, Ideogram, Leonardo AI, Playground AI, Krea, Lexica, NightCafe, Civitai, Canva Magic Media, Runway consumer. Do not use these for final commercial work without a written risk-transfer from your client.

    
    STEP TWO: if you are using AI for experimentation, brainstorming, or personal creative exploration — and not planning to sell or commercialize the output — the platform choice matters much less. Use whichever tool fits your creative process. Just understand you will not hold copyright in pure AI output and you should not present it commercially as your original copyrighted work.
    STEP THREE: document your creative contribution and the AI's role in your process. Keep prompt logs, iteration history, drafts, and records of your creative decisions. If you plan to register AI-assisted work with CIPO, this documentation is what proves your human contribution met the skill-and-judgment test. Without this record, your registration claim is weak.

    
    Additional safeguards: use a written contract with any client that specifies which AI tools you are using, who owns the output, and whether AI-assistance is being disclosed. Never upload confidential client material or unreleased work into public AI tools.

    
    

13. Preventing AI training on your work
    
    Question: Can I prevent my work from being used to train AI? (Kavisha). Not completely if your work is online and scrapable, but a layered defence provides meaningful protection.

    
    Answer: The fundamental challenge: AI companies have already scraped most of the public web, and new scraping continues. Once your work is in a dataset like LAION-5B, removing it is extremely difficult. Prevention is harder than it should be.

    
    Layer 1 — legal evidence. Register your copyright with CIPO so you have a statutory presumption of ownership if you ever need to sue. This is the most important foundational step.

    
    Layer 2 — explicit notice. Add clear 'no AI training' statements to your website, portfolio, Instagram, Twitter, and any other place your work appears online. Sample language: 'All works on this site are copyright-protected. No AI model may scrape, train on, or reproduce these works without written permission.' This does not guarantee compliance but creates evidence that you withheld consent — useful in future litigation or in asserting a breach of terms.

    
    Layer 3 — technical protection. Install Glaze (glaze.cs.uchicago.edu) on portfolio images — it adds invisible perturbations that disrupt AI style-mimicry training. Nightshade (nightshade.cs.uchicago.edu) goes further, poisoning images so models trained on them misclassify. Use Kudurru (kudurru.ai) or similar tools to block AI crawlers from your website at the server level.

    
    Layer 4 — opt-out registries. Register your work with Spawning's Do Not Train registry at haveibeentrained.com. Some AI providers (increasingly, under regulatory pressure) are beginning to honour these registries.

    
    Layer 5 — protected platforms. Consider hosting valuable work on platforms that explicitly prevent AI scraping — Artcryption is being designed specifically for this purpose. Move your most important works to scraping-resistant environments.

    
    Layer 6 — contractual and platform discipline. Audit every platform you use for AI-training terms. Avoid or leave platforms that grant broad training rights over your content. Meta (Instagram/Facebook) and X (Twitter) are the biggest current concerns.

    
    Longer-term outlook: expect the legal landscape to provide better tools in the next 1-3 years as Andersen v. Stability AI, MacKinnon v. Meta, Toronto Star v. OpenAI, CIPPIC v. Sahni, and related cases reach rulings. The regulatory cavalry is not coming quickly, but it is coming.

    
    

14. Parody, sound-alikes, and fair dealing
    
    Question: For a parody or sound-alike (like Weird Al), how different do the lyrics and music need to be? (Derek).
    
    Answer: There is no bright-line legal rule. The answer depends on originality, substantial similarity, and the fair dealing defence — all of which are assessed subjectively and case-by-case.

    
    Canadian law: section 29.21 of the Copyright Act permits non-commercial user-generated content that incorporates copyrighted work, subject to attribution and non-commercial use. Section 29 fair dealing expressly includes parody and satire — so a genuine parody that meets the fairness factors may be defensible. The fairness factors include purpose, character, amount of the work used, alternatives, effect on the market for the original, and nature of the original (CCH v. Law Society).

    
    In practice, courts look at: (a) how much of the original was borrowed; (b) whether the new work comments on or transforms the original (transformative use — see Andy Warhol Foundation v. Goldsmith, 2023 US Supreme Court); (c) whether the new work competes commercially with the original; (d) whether attribution is given; (e) the overall fairness of the borrowing in context.

    
    The critical practical reality: even if your parody defence is legally sound, the copyright holder can still sue you. You may ultimately win, but litigation is expensive, exhausting, and publicly taxing. Weird Al Yankovic, famously, always obtains permission from the original songwriter before recording his parodies — not because the law requires it, but because the relationship matters and the litigation risk is real.

    
    Practical recommendations, in order of safety: (a) seek permission from the original songwriter or publisher — this is the gold standard and Weird Al's own practice; (b) commission entirely original music and lyrics to avoid the question; (c) use public domain music if available; (d) use licensed stock music from a collective (SOCAN, AVLA); (e) if you proceed without permission, ensure your work is substantially transformative, clearly parodic, non-commercial where possible, and properly attributed — and be prepared for potential litigation. For anything going on broadcast TV or wide distribution, always clear permission.

Resources

• alasontario.ca — book a free legal clinic.

• ised-isde.canada.ca/cipo — register your work.

• artcryption.com — Canadian platform for registration and AI permissions. (Disclosure: co-founded by the presenter.)

• CIPO Guide to Copyright - ised-isde.canada.ca/site/canadian-intellectual-property-office/en/copyright/guide-copyright

• CCH Canadian Ltd. v. Law Society of Upper Canada, 2004 SCC 13, [2004] 1 SCR 339 — foundational Supreme Court of Canada decision — established the 'skill and judgment' originality test that anchors Canadian copyright. Also set out the fair dealing factors applied in every Canadian fair dealing case since. see: canlii.org/en/ca/scc/doc/2004/2004scc13/2004scc13.html

• Théberge v. Galerie d'Art du Petit Champlain inc., 2002 SCC 34, [2002] 2 SCR 336 — Supreme Court of Canada decision on the balance between creators' rights and users' rights; foundational to Canadian copyright interpretation. See: canlii.org/en/ca/scc/doc/2002/2002scc34/2002scc34.html

  
  

Questions? Contact Vandana@entcounsel.com · entcounsel.com