JTIP Blog

Introduction

In the United States, courts have commonly rejected arguments to protect an artist’s “style” under copyright law.  This treatment stems from the idea-expression distinction, which provides copyright protection for fixed expressions, but not abstract ideas. The copyright law regime treats style as an unprotectable idea. This means that multiple people may paint a tree with leaves, but the size, color, and shape of the tree in a particular painting is a distinctive expression that is protected. The emergence of generative artificial intelligence (AI) raises new questions and avenues to explore the limits of copyright law as it stands. The ability of AI models to produce new images “in the style of” specific artists increases the potential scope and magnitude of harm to said artists through the exploitation of their creativity, skill, and time.

The use of AI in artistic and creative contexts is impactful because it calls into question the foundational reasoning underlying the idea-expression distinction. Mark Lemley, a leading intellectual property scholar, theorizes that “increasingly, the things humans contribute in a collaboration with generative AI will be ideas and high-level concepts” and “AI will contribute the expression.” In other words, the ability of AI to take creative ideas prompted by individuals and express them in something tangible flips the idea-expression distinction on its head, disrupting the entire copyright law regime. This theory emphasizes the transformative potential of AI to challenge current law and demonstrates how drastic challenges to copyright law can open the door for reconsiderations of the protectability of an artist’s style.

While it has always been possible for individuals to copy the style of another artist’s work, the capacity for harm to artists increases exponentially due to the capabilities of AI. It is now as simple as typing a short prompt into an AI model to create an image that can be commercially marketed. Even without naming the original artist, individuals in the market may recognize their style. This scenario creates potential economic harm if the demand for original works by the artist whose style is being appropriated declines because similar works are widely available on the market. There are additional reputational implications if the subjects being depicted do not align with the artist’s individual values. Even if the artist disapproves of the image, the market will nonetheless associate the image with the artist. The artist’s lack of control over AI-created works reduces the incentive for innovation and new creation, hindering the constitutional goal of copyright to promote original works.

This blog post focuses on style in the context of visual art and takes two approaches to frame how style can be incorporated into protectable expression. First, it analogizes artistic style to the protection of architectural works in 17 U.S.C. § 102(8). Second, it outlines a theory-based route through the right of publicity that can serve as the foundation for protecting style. 

Architectural Works Analogy

     The adoption of architectural works as a category of copyrightable subject matter by Congress offers an interesting analogy to evaluate and understand how elements of an artist’s style are and are not protected under current copyright law. The United States Code defines an “architectural work” as a tangible design that “includes the overall form as well as the arrangement and composition of spaces and elements in the design, but does not include individual standard features.” In other words, designers may retain a copyright in the original combination of elements that give a building a distinctive character, but may not receive protection for broader features of a building. Significantly, Congress prevents protection of architectural style categories, such as art deco, midcentury modern, or neoclassical. This means that while design features such as arches and columns are not protectable, the unique combination of such features in an original manner can produce a protectable architectural work. The statute makes clear that Congress elected to specifically protect the overall form and arrangement of an architectural design, even if broader and standard features are used.

     The statute’s treatment of architectural works can be expanded and applied to other artistic works if an artist’s style is viewed as a form of expressive arrangement of techniques and aesthetic decisions. For example, while Vincent Van Gogh could not have claimed protection over post-impressionism, swirled brushstrokes, or vibrant color palettes, the combination and arrangement of these elements can be analogized to an architect’s expression of standard features. Under this view, style may be seen less as an abstract idea and more as a fixed expression made up of defined features.

     With this more defined approach to viewing unique artists and their style, it is clear why generative AI poses a risk. As the AI is learning how to replicate an artist’s style, it identifies the unique combination and arrangement of elements and creates the equivalent of an artistic profile. When generating a new image “in the style of” an artist, AI has the explicit goal of making the image in the artist’s recognizable style, utilizing the combination of elements in the works it was trained on. This means that AI is creating new works based on the expressive arrangement and combination of elements that makes an artist’s style distinct, which would be protectable if the image was an architectural work. This analogous relationship and the strong theoretical argument for protecting artistic style in the context of generative AI provides one logical route toward advocating for the protection of style.

Right of Publicity Perspective

The right of publicity is a state-level right intended to prevent “unauthorized uses of a person’s identity.” The theory underlying this right offers a foundation for recognizing artistic style as part of an individual’s identity. The ability of an AI model to associate a specific style with a specific artist to create new images indicates a merging of the two concepts, with style becoming a proxy for artistic identity. It is often an individual’s unique artistic identity that the market values. If style is viewed as part of an artist’s identity, the right of publicity provides a strong mechanism for protecting it. The rationale underlying the right of publicity is “preserving the commercial value of their identity” and “protecting the autonomy of their personality.” These underlying rationales align closely with the specific harms that generative AI can have on artists through unauthorized appropriation of their styles, namely economic and reputational harms.

California legislature and courts lead in granting publicity protections and provide the strongest outline for a federally regulated and protected right of publicity. Not only does the California Civil Code § 3344 provide legislative protections for the “name, voice, signature, photograph, or likeness” of an individual, but state common law also provides broader protections. The scope of the right of publicity doctrine is further articulated through case law, which protects elements of identity and can serve as the blueprint for protecting style as an element of identity. In Midler v. Ford Motor Co., the Ninth Circuit held that the imitation of actress and comedian Bette Midler’s voice constituted misappropriation even though neither her name nor her image was associated with the advertisement. The Court stated that “[t]o impersonate her voice is to pirate her identity.” The scope of this statute was expanded in White v. Samsung Electronics, where the Ninth Circuit held that a robot dressed to resemble Vanna White and positioned to turn letters as is done on the Wheel of Fortune game show infringed on her right of publicity. The court noted that the right of publicity protects more than “a laundry list of specific means of appropriating identity” and “name and likeness” do not need to be used to infringe the right of publicity. Symbolic references emulating the attire and behavior of an individual are enough to violate one’s identity. These cases illustrate how a broad and nonliteral conception of identity is recognized under the right of publicity.

This expansive approach by the Ninth Circuit implicates the incorporation of artistic style, which is simply the combination and arrangement of elements that the public associates with an artist, as part of that artist’s identity. The Ninth Circuit has demonstrated a willingness to grant protection under a broad conception of likeness; an artist’s stylistic signature, like Midler’s vocal tone and White’s television persona, could constitute an element of identity protectable under the right of publicity. This argument is particularly powerful in the context of generative AI, which extracts patterns from an artist’s work and produces a new image intended to be closely associated with that artist, even if the artist’s name is not used. The assumption underlying the right of publicity is that the individuals whose identities are being appropriated are commercially valuable. Similarly, artists that are appropriated for their artistic style are likely to have value. Thus, the exploitation of an artist’s recognizable and imitable style resembles the type of appropriation that the Ninth Circuit sought to prevent. Given the relevant precedent of the California legislature and Ninth Circuit, the right of publicity provides a foundation for protecting an artist’s style.

Conclusion

The traditional arguments for not protecting an artist’s style are being challenged due to the monumental impact that generative AI has on artists. If the idea-expression distinction, a core foundation of copyright law, does not function as intended due to widespread growth of expression but lack of ideas, the copyright regime should reevaluate whether style is protectable. The two foundations outlined in this paper, architectural works and right to publicity, provide starting points for policymakers and legislators to consider in evaluating the protectability of style.