The problem with AI generated images

By Ruby Okely

The National Indigenous Times recently reported that Adobe has come under scrutiny for hosting AI-generated stock images that falsely claim to depict “Indigenous Australians” and “Aboriginal artwork”.[1]

Adobe Stock includes several AI-generated images labelled as “Indigenous Australians”, but these do not accurately represent Aboriginal and Torres Strait Islander people. 

Some of these images also feature body markings that are “culturally meaningless”.  Traditional body markings and body paint are unique to each language group, holding culturally significant and sacred knowledge. Aboriginal people cannot simply just create their own designs, instead there are strict guidelines governing the design and its application.[2] Instead, the AI-generated images use generic symbols that bear no connection to traditional markings. 

AI-generated Aboriginal artwork has also been found on Adobe Stock. Aboriginal artist, Kylie Hill who spoke to the outlet, expressed concerns about the economic impacts of the fake art, stating, “People should be paying the real artists, not the Adobe fakes”.[3]

Additionally, Adobe Stock has been criticised for using offensive and outdated terms in their image descriptions. Terms which carry racist connotations from Australia’s colonial and oppressive laws. 

The National Indigenous Times questioned Adobe about its accountability measure, consultation processes, and whether the inclusion of AI-generated images was an attempt to avoid paying real artists and models. Adobe did not address these concerns but stated that “Adobe Stock reflects the creative vision of its contributors and should not be interpreted as factual”. At the time of publication, Adobe has yet to explain how its AI models are trained and what safeguards are in place to prevent cultural exploitation. 

These AI-generated images and artworks raise major concerns about the exploitation of Indigenous Cultural Intellectual Property (ICIP). They contribute to homogenisation of Aboriginal culture, misrepresentation and racial stereotyping of Aboriginal and Torres Strait people. 

What is generative AI? 

Generative AI is a machine-learning model trained to create new data.[4] These systems generate output that resemble the data they were trained on.[5]

The National Indigenous Times article raised concerns about how Adobe Stock’s training process, questioning whether Aboriginal and Torres Strait Islander artists are aware that their artwork is being used to train AI models. 

Impacts on copyright 

For an artwork to be protected by copyright, it must involve human effort rather than machine effort. This means that AI-generated images that lack a human author’s ‘independent intellectual effort’ likely do not qualify for copyright protection.[6]  However, this raises broader concerns – if an AI-generated image contains ICIP material, it will not be protected.[7]

Copyright protection is also limited to 70 years after the passing of the author. This means that artworks or designs that are hundreds or thousands of years old will not be protect by copyright, allowing AI to generate images without breaching copyright laws.

Copyright is a bundle of rights, this also includes moral rights which include: 

  1. The right of attribution: this is the right of an author to be identified and named as the author of their work;
  2. Right against false attribution: this is the right of an author to stop someone else being credited as the author of their work; and
  3. The right of integrity: this is the right of an author to ensure that his/her work is not subjected to derogatory treatment which is any act in relation to the work that is in any manner harmful to the author’s honour or reputation.[8]

These moral rights could be infringed if, for example, an artist’s work is used to train AI models without their consent or if AI-generated images are derived from protected materials without their acknowledgment.[9]

Impacts on ICIP 

AI poses real and on-going risks for Aboriginal and Torres Strait Islander people, particular in relation to ICIP. AI can exploit ICIP protocols such as obtaining free, prior and informed consent (FPIC) from artists and knowledge holders.  ICIP broadly refers to the rights that Indigenous people have to protect their traditional knowledge and cultural material, based on the principle of self-determination. 

Terri Janke and Company recently outlined how AI could negatively impact ICIP rights:

  1. Failing to attribute Traditional Knowledge holders;
  2. Creating false and misleading representations;
  3. Disregarding cultural protocols, such as those governing who can share certain stories or use specific artistic styles, including gender-specific artworks;
  4. Misappropriating ICIP without consultation or FPIC; and 
  5. Leaving ICIP unprotected when included in AI-generated materials.[10]

Another concern is the generalisation or homogenisation of Aboriginal culture by AI programs. Designs and styles are unique to each language group or Country. However, when AI generates an “Aboriginal artwork”, it is likely drawing from a broad mix of styles from across Australia. 

Looking forward: future considerations

[Arts Law are closely following the emergence of new stand-alone legislation to protect ICIP. The government recently formed a First Nations Expert Working Group on ICIP in preparation for the next stages. The new legislation seeks to address the gaps between the current IP landscape and ICIP. The expected benefits of this legislation will be providing adequate protection against fake art, loss and misrepresentation of culture, personal hurt, emotional distress and economic loss.[11]

On a global scale, progress has been made. The WIPO Treaty on Intellectual Property, Genetic Resources and Associated Traditional Knowledge was adopted by member states in May last year.  So far, Malawi has been the first and only member state to ratify the treaty.[12]] 

Arts Law hopes to work closely with Adobe (and other big tech) about innovative, ethical approaches to using AI.

[1] National Indigenous Times, ‘Adobe Slammed for Use of AI-Generated Images of Indigenous People and Artworks’ (Online, 10 March 2025) https://nit.com.au/10-03-2025/16681/adobe-slammed-for-use-of-ai-generated-images-of-indigenous-people-and-artworks.

[2] Mbantua Gallery, ‘The Story Behind Aboriginal Body Art’ (Online) https://mbantua.com.au/aboriginal-art-blog/the-story-behind-aboriginal-body-art/.

[3] National Indigenous Times, ‘Adobe Slammed for Use of AI-Generated Images of Indigenous People and Artworks’ (Online, 10 March 2025) https://nit.com.au/10-03-2025/16681/adobe-slammed-for-use-of-ai-generated-images-of-indigenous-people-and-artworks.

[4] MIT News, ‘Explained: Generative AI’ (Online, 9 November 2023) https://news.mit.edu/2023/explained-generative-ai-1109.

[5] Ibid. 

[6] Arts Law Centre of Australia, ‘Artificial Intelligence (AI) and Copyright’ (Online) https://www.artslaw.com.au/information-sheet/artificial-intelligence-ai-and-copyright/.

[7] Terri Janke, ‘The New Frontier: Artificial Intelligence, Copyright and Indigenous Culture’ (Online) https://www.terrijanke.com.au/post/the-new-frontier-artificial-intelligence-copyright-and-indigenous-culture.

[8] Arts Law Centre of Australia, ‘Moral Rights’ (Online) https://www.artslaw.com.au/information-sheet/moral-rights/.

[9] National Association for the Visual Arts, ‘NAVA Talks: AI’ (Online, 2024) https://visualarts.net.au/nava-events/2024/nava-talks-ai/.

[10] Terri Janke, ‘The New Frontier: Artificial Intelligence, Copyright and Indigenous Culture’ (Online) https://www.terrijanke.com.au/post/the-new-frontier-artificial-intelligence-copyright-and-indigenous-culture.

[11] Sophie Coffin, ‘New Stand-Alone Draft Legislation to Protect Aboriginal and Torres Strait Islander Cultural and Intellectual Property – Part 1’ (2025) 52(1) Brief (East Fremantle, W.A.) 36.

[12] Arts Law Centre of Australia, ‘First Ratification of WIPO Intellectual Property, Genetic Resources and Associated Traditional Knowledge Treaty’ (Online) https://www.artslaw.com.au/first-ratification-of-wipo-intellectual-property-genetic-resources-and-associated-traditional-knowledge-treaty/.