Can you use AI-generated images commercially?

Until recently, the safe answer was "not yet". OpenAI only granted commercial rights to DALL·E 2 images on July 20. Midjourney is in open beta with paid plans, and Stable Diffusion's weights are now available for anyone to download. Designers, small businesses and marketers now have three popular image generators to choose from, and each one comes with different rules.

This article explains what those rules say as of late August. It is not legal advice. The terms of use set out what each company permits; they cannot settle every question about copyright, which differs by country and is still being worked out for machine-made images. For anything high-stakes, such as a logo or a product line, check with a lawyer.

Why the terms matter more than the image

When you make an image with one of these tools, two things decide what you may do with it. The first is the contract you accepted when you signed up: the terms of use or the licence. The second is the general law of copyright and trademarks, which applies no matter what the contract says. A service can give you its own rights in an image, but it cannot give you rights to someone else's character, logo or artwork that happens to appear in it.

Midjourney says this openly in its terms: because its system is trained on public datasets, an image may unintentionally resemble copyrighted material or a trademark. That risk exists with every generator, which is why the checklist below includes a look at the image itself, not only the paperwork.

A checklist for a client project

Imagine a café owner asks you for a set of illustrated posters for their walls and social media pages. Before you deliver AI-assisted artwork, run through these questions:

What do the DALL·E 2, Midjourney and Stable Diffusion terms allow?

DALL·E 2. When OpenAI moved DALL·E into beta on July 20, it gave users full rights to use their images commercially, including the right to reprint, sell and put them on merchandise. The change also covers images made earlier during the research preview. OpenAI mentions uses such as children's book illustrations, newsletter art, game concept art and movie storyboards. The usual content rules still apply: DALL·E rejects uploads of realistic faces and attempts to depict public figures.

Midjourney. The terms in force since July 15 say that you own the images you create, subject to two exceptions and to a broad licence you grant Midjourney. That licence lets Midjourney reproduce, adapt, display and distribute your prompts and images, and it lasts forever. The first exception: if you are not a paid member, you receive your images under the Creative Commons Attribution-NonCommercial 4.0 licence, which does not allow commercial use. The second: if you work for or own a company with more than US$1,000,000 a year in gross revenue and use Midjourney for that company, you need a corporate membership plan. Images are also public and can be remixed by others by default; a private plan bypasses some of those defaults.

Stable Diffusion. Stable Diffusion is a model you can download, not a service with an account, so the rules come from its licence, the CreativeML OpenRAIL-M. The project's README describes it as permissive and says commercial use is permitted, but the licence contains specific restrictions on uses that cause harm or misuse, informed by the model card. The researchers add a caution: they do not recommend putting the provided weights into products or services without extra safety measures, because the model has known limitations and biases.

Put simply: with DALL·E 2 and a paid Midjourney plan, commercial use is allowed on the terms above; with a free Midjourney account, it is not; with Stable Diffusion, it is allowed as long as you respect the licence's use restrictions. In every case, the terms can change, so save a copy of the version that applied on the day you made the image.