You might be aware of the raging controversy of the use of an Ansel Adams photograph as the source material for an AI generated “colorized” version of the photograph.
That isn’t the problem – the copyright expired on this particular photograph and was not renewed, so the photograph was “in the public domain” and could be used in any way by any artist for any purpose.
The issue is how the gallery that recreated the image then marketed it with Ansel Adams name and reference to the original photograph. Why is that a problem?
Disclaimer: I am not a lawyer and this is not a legal case or legal advice.
Each photographer who releases work into the “ether” releases it both with real copyright and with branding. Common law provides a blanket copyright for some period of time, depending on the jurisdiction. For those who need it, you can more formally register your work with a durable copyright that makes it easy to prove your ownership. This usually involves a fee and a document of registration. That latter formal registration does expire though, and has to be renewed. It wasn’t here.
The image in question is Moonrise Over Hernandez, created in 1941. The AI generated image is below it.
Ironically, the AI tools on Google Search describes the controversy as follows:
The AI “Moonrise” Controversy
At a New York photography fair, the Danziger Gallery exhibited and offered for sale an unauthorized, AI-colorized version of Adams’s most famous photograph, Moonrise, Hernandez, New Mexico (priced up to \(\$10,000\)). [1, 2]
- The Estate’s Response: The Ansel Adams Publishing Rights Trust condemned the move as a “gross failure of ethical and professional judgment,” noting the gallery did not ask for permission and allegedly used the incident to pitch commercial AI ventures to other artists’ estates.
- The Gallery’s Defense: James Danziger argued the original 1941 image is in the public domain, making his AI-modified print a “new and transformative work”.
- Previous AI Disputes: This followed a similar 2024 dispute where the Trust forced Adobe to remove AI-generated stock images being sold as “Ansel Adams-Style Photography”.
Most copyright experts describe the gallery’s position as legally right but morally wrong. There is a grey area around any reference by the third party to Ansel Adams name or any implication that the derivative work is something he would do, like or endorse. There was absolutely no relationship here either with Adams himself (of course, since he passed away in 1984) or with his estate. You can bet that if no reference had been made to his name, nobody would have noticed the AI-generated photograph or the gallery selling it. So in my view, there is a definite argument for some type of commercial infringement.
Many of us “recreate” iconic images as we visit tourist attractions or practice with different styles of photography. How many pictures of the Grand Canyon have you seen? But we don’t market them as in any way related to any other photographer or their work. And we don’t sell them for 5 figures.
And to my eye, while the images are similar, they are not the same. The AI engine has cleaned up and added things that were not in the original image. It is not just a colorized version. So can it be argued that it is in any way related to Ansel? Only because the gallery chose to mention him.
The page advertising the photograph for sale has, as of this writing, been taken down. It will, however, likely be up again with a different “branding” at some point. Both the black and white and the colour images are compelling. I’m sure there will be an audience for the latter – just not at $10,000.
oldgirlphotography.ca 