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After OpenAI updated the image capabilities of its generative artificial intelligence tool ChatGPT, users flooded the internet with photos rendered “in the style of” Studio Ghibli, an influential Japanese animation company with a distinctive aesthetic.

But the memeification of Ghibli-style images has also generated the possibility of lawsuits claiming infringement of the 40-year-old studio’s signature style.

Copyright law is insufficiently-equipped to decide whether artistic style is protected against infringement, says Duke intellectual property law expert Christopher Buccafusco, who proposes a new approach in his article Copyrighting Style.

The law currently relies on the idea/expression doctrine, which holds that ideas, techniques, and methods in a creative work cannot be copyrighted, while the expression of ideas can. But there is little agreement on whether style is idea or expression, he writes. Over the past 150 years, court decisions on matters of style infringement have been roughly evenly split.

Instead, Buccafusco suggests, courts should recognize a copyrighted work as the full union of both the underlying idea, subject or content and formal expressive features — an “authorial symbol” that is protected against copying.

“Copyright law should embrace style’s inherent duality,” said Buccafusco, the
Edward & Ellen Schwarzman Distinguished Professor of Law at Duke Law School.

“Style is both expression and idea. Thus, only when defendants copy both aspects of the authorial symbol — expression and idea — do they infringe.”

What is style?

Buccafusco’s concept of an authorial symbol draws on the aesthetic theory of American philosopher Nelson Goodman. To Goodman, artworks are symbols, and style works as part of a symbolic system, or way of understanding the world. Goodman rejects the idea that content and form are mutually exclusive elements; instead, he suggests, an artist’s style may consist of both what is said or depicted and the way it is expressed.

“What Goodman offers us is the recognition that an artist's style is not just how she paints, but what she paints,” Buccafusco said.

“We think of Claude Monet not just for particular dabs of Impressionist painting, but we also think of him painting water lilies or countrysides, or Rouen Cathedral. We don't think of him painting the modern Parisian skyline. That doesn't seem like his style, even though he could have done that.”

Buccafusco extends Goodman’s ideas to copyright law, asserting that each copyrighted work “should be seen as a single expressive unit — an authorial symbol — through which the author has expressed in formal features the relevant underlying content or ideas. … The copyright only reflects the complete operation of the work as authorial symbol — as both expression and content.”

Using this approach, he says, copyright infringement should only be found when substantial similarity is found between all the relevant properties of a work — the complete authorial symbol — and its alleged copy.

Drawing a line

The subjective nature of visual art has long been a sticking point in evaluating misappropriation through the idea/expression doctrine: Where is the line between an idea and its expression? At what point can an objective determination of “substantial similarity” be found between a copyrighted work and its alleged copy?

“We’ve got this really tough line-drawing problem where at what point is the kind of things that the artist is doing so abstract that we're going to call them ideas or so technical, so methodological, that we call them expression?” Buccafusco said.

“Courts have not really been able to come up with a coherent distinction between which sorts of things are style, which sorts of things are ideas, and which sorts of things are expression in the context of pictures.”

To help clarify the scope of copyright, Buccafusco also draws on the 1977 ruling in Sid & Marty Krofft Television Productions v. McDonald’s Corp., a landmark case in which the fast food chain was found to have infringed the Kroffts’ H.R. Pufnstuff children’s TV show through similar characters it created for its McDonaldland commercials.

Similar to Goodman, the court in Krofft emphasized that substantial similarity of both general ideas and their expression is required to find infringement. And while drawing a bright line will still be difficult in some cases, it also provided guidance on how to evaluate similarities between a creative work and an alleged copy through specific criteria focusing on literal features of expression and content, rather than on the mood or emotion an artwork evokes

Mayor McCheese, Grimace, and the Hamburglar are long gone. Today, questions of style infringement have higher stakes due to the ease of copying via widely available technology-enabled tools such ChatGPT.

“For most of human history, when someone copies your style that’s typically a good thing. This is how you get to be a famous artist and people know you,” Buccafusco said.

“Now, in the commoditized world of contemporary art markets, people are going to be copying on a mass scale and sharing on a mass scale.”

Considering the authorial symbol in cases involving AI-generated copyright infringement is the best way to balance copyright holders’ interests and the interests of future artists and the public, he said.

Under that approach, people who use generative AI platforms to recast their selfie “in the style of” Studio Ghibli won’t have to worry about lawsuit, as the expression might copy Ghibli but the content would not.

“Copyright owners will still be able to maintain infringement actions against AI users who produce and sell works that compete with their own by representing the same subject or content in the same manner,” Buccafusco said.

“But users will be free to explore the vast creative possibilities that generative AI presents by applying various styles to their desired content.”