AI Imitating Artist ‘Style’ Drives Call to Rethink Copyright Law

Photo Illustration: Jonathan Hurtarte/Bloomberg Law; Photos: Getty Images

The rise of generative artificial intelligence models that can create graphic, textual, or even audio outputs at a user’s request led lawmakers this month to ask whether an artist’s style can be protected as intellectual property. The answer, for now, appears to be no.

Rep. Ted Lieu (D-Calif.) asked during a May hearing on the intersection of AI and copyright law whether pop star Taylor Swift would have any recourse if a program created music that imitated her style without lifting her lyrics or composition.

That wouldn’t implicate copyright law in the US, according to witness and Latham & Watkins LLP partner Sy Damle. “If I were to write a song in the style of Taylor Swift, that would not be copyright infringement,” he said at the hearing. “That’s one of the founding precepts of copyright law.”

The rapid development of artificial intelligence has raised novel concerns among practitioners, courts, and lawmakers about maintaining a balance between encouraging innovation and protecting creators’ rights. AI-generated works have prompted questions on whether it should be possible to protect an artist’s distinctive personal style—as tricky as that may be to define—alongside their copyrighted works.

Copyright law protects only expression that’s been fixed in a tangible medium, such as writing on a paper, a painting on canvas, images on film, or a music recording. Some attorneys, though, say that the scope and capability of AI should prompt Congress or the courts to consider new protections for artists’ styles.

“We’ve never had a situation in which this personal style of individual creators could be imitated as well and as inexpensively as we now have with AI,” said Robert Brauneis, co-director of George Washington University Law School’s IP program.

“It definitely puts certain creators in jeopardy, threatens their livelihoods,” he said, highlighting that lesser-known creators are particularly at risk.

Copyright & Style

Even famous artists’ styles can be difficult to pin down, though, and can change over time. A graphic artist’s habitual color palate and techniques and a musician’s voice, instrumental choices, and other tendencies are at the core of their style.

“Typically in the law, when we talk about style, we’re talking about an undetectable idea,” said Xiyin Tang, an assistant professor at the UCLA School of Law.

Swift, for example, has been known to try her hand at different musical genres—including country and pop—but she says her storytelling throughout all her music is what defines her style.

“For the most part, courts have been reluctant to find liability when something has been claimed to be ‘in the style of’,” said Sarah Conley Odenkirk, a partner at Cowan, DeBaets, Abrahams & Sheppard LLP. “The courts generally will see that as being more on the idea side than the expression side.”

Even in the rare case where a court decides an artist’s style was part of an infringement finding—such as the Southern District of New York’s 1987 decision in Steinberg v. Columbia Pictures Industries, Inc.—style isn’t the only consideration.

In that case, a movie poster for “Moscow on the Hudson” was found to infringe a magazine cover by artist Saul Steinberg despite clear differences between them. The court cited the striking stylistic relationship between the two images, saying, “since style is one ingredient of ‘expression,’ this relationship is significant.”

Style alone, however, wouldn’t have been enough had the picture not also been similar in other ways, Debevoise & Plimpton LLP partner Megan Bannigan said.

“For years artists have been studying art and other artists and getting inspirations, and that’s perfectly acceptable,” she said. “What you really need to look at is the specific output and whether the output that is actually created is substantially similar.”

Is AI ‘Out of the Woods’?

Whether AI generators and their users are inviting liability by prompting a song or painting in a specific artist’s style, boils down to how successful the imitation is, according to IP attorney Vivek Jayaram.

“If you say, ‘Make me a song that sounds like Taylor Swift,’ there is nothing inherently illegal about that,” said Jayaram, adding that you could even choose to specify that you’d like the generator to produce a song specifically in the style of Swift’s “Out of the Woods,” for example.

However, “if that resulting work is in fact substantially similar to a Taylor Swift song, then you have a problem,” he said.

In such a situation, a court might also find that the infringement was willful, Jayaram said.

“A court can say, ‘Well, not only are these two songs substantially similar, it seems to us that the defendant actually meant and intended to create a song that was similar,’” he said. “That now puts you in a in a place where you might get be subjected to enhanced damages, punitive damages, attorneys fees.”

Artists who haven’t yet achieved major renown may have the most to lose without style protections, Brauneis said.

A well-known artist such as Swift or painter David Hockney may be able to survive style copycats without specific legal protections, thanks to their fans’ desire to own works that are authentically created by them. Those without developed fanbases may not be so lucky.

“I’d be more worried about mid-range artists and illustrators who don’t have that kind of protection,” he said. Those artists would have little legal or practical recourse if a magazine editor, for example, turns to AI to more cheaply—or even at no cost—generate images in their style instead of paying them.

Potential Protections for Artists

Though a system for licensing artists’ works for use by AI doesn’t currently exist, the idea has drawn congressional attention and attorneys say that such an arrangement may clear up concerns surrounding style.

If AI companies license images, for example, “they need to also think about what other intellectual property or personal rights someone might theoretically be able to claim based on output that maybe they’re not happy with,” Odenkirk said.

Tang said the solution for artists looking to protect their overall style may lie outside of copyright law.

“Heart on my Sleeve,” a viral song using AI-generated vocals imitating Drake and The Weeknd, amplified fears about the use of AI to imitate artists, prompting attorneys to point to right of publicity claims as the solution.

Artists might argue that AI-generated works in their style infringe on their right of publicity, which protects individuals from exploitation of their name, image, and likeness without permission.

Attorneys say the success of such claims will depend on a host of factors, including the extent to which an artist is imitated.

“It really varies state by state, and it depends on what statute you fall under,” Bannigan said. “But I do think that if you are publicly advertising, that this is in the style of Taylor Swift, it could raise issues down the line.”

This article was published by Bloomberg Law.