For a professional photographer there is another question to ask today: what happens to my photographs when they are used with artificial intelligence tools?
The problem can arise in several ways. A client might take one of your photographs and use it as a reference image (input) to generate a new image, change the background, create a product variant or build an advertising campaign. Or you might use an AI tool yourself to carry out a post-production task.
These uses should not, however, be confused with another matter: the possible acquisition of photographs to train, improve or evaluate an AI model. They are two different situations and, especially in a professional relationship with a client, it is best to regulate them separately.
Copyright enters the world of AI
At European level the subject was addressed by Directive (EU) 2019/790 on copyright in the Digital Single Market.
In particular, Article 4 of Directive (EU) 2019/790 (→ eur-lex.europa.eu) sets out certain exceptions for text and data mining, meaning techniques for the automated analysis of large quantities of digital content. For content to which there is lawful access the provision establishes an exception, but it also recognises that rightholders may reserve their rights with respect to such uses, where the conditions laid down by the provision are met.
This is an important point for anyone publishing photographs on the web.
The matter was further supplemented by the AI Act, Regulation (EU) 2024/1689 (→ eur-lex.europa.eu), which in Article 53(1)(c) (→ eur-lex.europa.eu) requires providers of general-purpose AI models to put in place a policy to comply with Union copyright law and, in particular, to identify and comply with reservations of rights expressed under Article 4(3) of Directive 2019/790.
The same regulation, in recital 105 (→ eur-lex.europa.eu), explicitly recognises that training AI models can involve large quantities of content, including images and videos, which may be protected by copyright.
Input and training are not the same thing
This point deserves particular attention.
If a client takes one of your photographs and puts it into an AI program asking, for example, to:
"turn this photograph into an autumn advertising campaign"
this is not automatically a model-training activity. In this case your image is used as input to obtain new content.
It is different when the image is acquired and used, as part of a provider's activities, within a dataset intended for developing or training a model.
For the photographer it is therefore useful to cover both situations in the contract.
How to protect yourself in the contract with the client
A specific clause can state that the photographs are granted exclusively for the uses indicated in the contract and that certain uses by means of AI systems are excluded unless authorised in writing. For example:
Use by means of artificial intelligence systems. The images supplied by the photographer are granted exclusively for the uses expressly indicated in this agreement. Unless the photographer has given prior written authorisation, the use of the images as a dataset, training material, or for the fine-tuning or evaluation of artificial intelligence or machine learning systems is excluded, as is their transfer to third parties for such purposes. The use of the images as input for generating derivative content by means of AI systems is also excluded, except as expressly authorised in this agreement.
A clause of this kind should not be regarded as a "magic formula" valid in every situation: it has to be coordinated with the rest of the contract, with the licence granted to the client and with the terms of the platforms used. But having a written provision is far better than leaving the use of the images completely undefined.
Watch out for AI platforms
There is also an often overlooked aspect. When you upload a professional photograph to an AI platform, you shouldn't just ask yourself "does the platform let me edit it?". It is also advisable to check:
- who can process the uploaded file;
- how long it can be stored;
- whether it can be used to improve the service;
- whether it can be used for training or developing the model;
- what rights you contractually grant to the platform provider.
This becomes even more important when the photograph belongs to a client or when the file contains confidential material, unpublished campaigns or elements covered by non-disclosure agreements.
So, before uploading a RAW file or a high-resolution master to an AI tool, it is good practice to always check the terms of service.
And the photographs published on your own website?
The online portfolio deserves attention too.
Directive (EU) 2019/790, Article 4(3) (→ eur-lex.europa.eu) provides that the reservation of rights regarding text and data mining may be expressed in an appropriate manner, including by machine-readable means. The AI Act, Article 53(1)(c), expressly links the obligations of AI model providers to these reservations: Regulation (EU) 2024/1689, Article 53 (→ eur-lex.europa.eu).
This does not mean that a simple notice on the website, a watermark or a robots.txt file automatically amounts to absolute protection against any AI technology. It does mean, however, that the rightholder's wish to reserve certain uses can also take on technical significance, especially in relation to systems that must be able to recognise such reservations.
A practical rule for the photographer
When in doubt, always consider these four levels separately:
- ordinary use of the photograph;
- modification of the photograph by means of AI;
- use of the photograph as input to generate new content;
- use of the photograph for training, fine-tuning or developing models.
A well-made contract can regulate each of them individually.
For a food photographer this distinction is particularly important, because a photograph made for a client can have a value far greater than the simple use for which it was originally commissioned.
Intellectual property of a Michelin-starred dish: who owns a culinary creation?
When we photograph a fine-dining dish, we often take it for granted that the question of intellectual property concerns only the photograph.
It doesn't.
A Michelin-starred dish can be the result of months of research: idea, recipe, preparation techniques, presentation, name, visual composition and the restaurant's know-how can have different characteristics and forms of protection.
So the correct question isn't "is the dish protected by copyright?", but "which elements of the culinary creation can be protected, and with which tool?".
The recipe and the taste are not automatically a protected work
Italy's Law 633/1941 on copyright (→ biblioteche.cultura.gov.it, in Italian), in Article 1 (→ biblioteche.cultura.gov.it), protects works of the mind of a creative nature. Copyright, however, does not automatically turn an idea, a method or a process into a protected work.
A judgment of the Court of Justice of the European Union is particularly significant on this point. In case C-310/17, Levola Hengelo BV v. Smilde Foods BV (→ curia.europa.eu), decided on 13 November 2018, the Court held that the taste of a food product cannot be classified as a "work" protected by copyright under the European copyright directive.
The reason is very interesting: taste cannot be identified with sufficient precision and objectivity as a work of the mind.
This does not mean that the chef's creative activity has no protection. Rather, it means that we cannot consider the taste of the dish, in itself, equivalent to a photographic, musical or literary work.
Which elements can receive protection instead?
The answer may lie in tools other than copyright alone.
- The name of the dish or product can, under certain conditions, be protected as a trademark.
- The original written description of the recipe may qualify for protection as a text, if it meets the requirements of copyright law.
- Know-how and certain confidential processes can be protected under trade secrets law, where the legal requirements are met.
- The visual appearance of the dish can also come into play, in certain circumstances, within the protection of intellectual property and design.
In other words, it isn't correct to say that "a dish can't be protected". It's more correct to say that protection can concern different elements of the culinary creation, and not necessarily the dish as a whole through a single right.
And the photograph of the dish?
Here we come back to the photographer's work. Imagine a chef who has developed an original dessert and a photographer who makes a shot through a precise choice of:
- light;
- composition;
- perspective;
- styling;
- depth of field;
- colour;
- atmosphere.
The culinary creation and the photograph are two different objects from the point of view of intellectual property.
The chef may have rights or legally relevant interests in their culinary creation. The photographer may be the author of the photograph under the requirements of Law 633/1941, Article 2(7) (→ biblioteche.cultura.gov.it, in Italian). The restaurant may have rights in its trademark and distinctive signs. Finally, the client may have, under the contract with the photographer, certain rights to use the photograph.
So several different rights can coexist around a single photograph of a dish.
A concrete example
Imagine a Michelin-starred restaurant that creates a dessert called Bosco d'inverno. The recipe is developed by the chef and the process is kept confidential. The name of the dessert is used as a distinctive element of the restaurant. The dish is also designed with a particular visual composition. The photographer then makes an original image for the restaurant's campaign.
In this case we may have:
- the chef's know-how, potentially protectable as a trade secret if the requirements are met;
- the distinctive name, potentially protectable as a trademark;
- the description of the recipe, which may qualify for copyright if it meets the requirements;
- the photograph, which has its own rules and its own rights;
- any people portrayed, subject to the rules on image rights.
The photograph, then, does not automatically transfer ownership of the dish to the photographer, just as the fact that the restaurant pays for the shoot does not automatically make it the holder of every right relating to the photograph. These are different levels and must be kept separate.
Why does this directly concern the food photographer?
Because in food photography the subject being photographed can be highly creative and have enormous commercial value.
When you work for a chef, a restaurant, a producer or an agency, it is therefore useful to know exactly what you are photographing and what rights already exist around that subject.
The photography contract should above all make clear which uses of the images are granted to the client, while any permissions relating to trademarks, people, locations or other elements on set must be handled separately when necessary.
Photograph, dish and AI: today the rights overlap
The food photographer's work therefore sits at the crossroads of several levels of intellectual property.
There is the dish and its culinary creation. There is the trademark of the restaurant or product. There may be people portrayed. There is the photograph, with the photographer's rights. And today there is also the possible use of the image by AI systems.
This is why the question "who owns this photo?" is often too simple. The correct question is: who owns which rights, which uses have been granted and which uses are excluded?
For a professional, this distinction isn't only legal: it's also financial. A photograph made for a restaurant's menu can have one value and one price. The same photograph used for a national advertising campaign, for packaging, for an international campaign or as input in a generative production can have a completely different commercial value.
That's why, today, clearly defining the licence, duration, territory, distribution media, any exclusivity and use by means of AI is an integral part of the photographer's professional work.
The terms I work under are set out on the terms and conditions page. If you're preparing a contract and want to understand which uses to grant, write to me.
