Is it legal to use AI to copy an artist’s style?

Recently, social media was awash in newly created images in the distinctive anime style of Japan’s Studio Ghibli.

People were inputting family photos, memes, and other content into OpenAI’s latest release of its ChatGPT generative AI (GAI) tool and then posting the results in a Ghibli-style format.

Many people found this to be super kawaii (Japanese for “cute”), but others considered it an objectionable theft from Studio Ghibli – especially since the studio founder, Hayao Miyazaki, has called some examples of AI-generated animation “an insult to life itself.”

One user on X (formerly Twitter) commented:

The whole Studio Ghibli AI trend honestly gives me second-hand embarrassment, knowing how hard Hayao Miyazaki has fought to retain the identity of his films and how many of you are this willing to make a farce out of decades of artistry because you don’t actually value it.

The feature was certainly popular, adding millions of users to OpenAI, which had to limit use.

According to The Standard,

ChatGPT went down following OpenAI’s warning that overwhelming demand for the tool was “melting” its servers. CEO Sam Altman said his company would place temporary limits on the image tool but assured users that it would not be downgraded.

The GAI tool was quickly put to not-so-kawaii uses. As The Standard noted,

On X, formerly Twitter, some users began circulating provocative and offensive content, including depictions of Hitler, police brutality, and anti-Semitic imagery, and the juxtaposition of such violence against the innocence of Ghibli’s beguiling style gave the images an unsettling quality.

OpenAI stated that it would review the offensive content to determine whether it violated company policies and that it had safeguards in place to block harmful content.

With respect to the copying of the Ghibli style, OpenAI initially said,

Our goal is to give users as much creative freedom as possible. We continue to prevent generations in the style of individual living artists, but we do permit broader studio styles, which people have used to generate and share some truly delightful and inspired original fan creations.

However, users of at least the free version of the GAI tool soon found that it was no longer allowing Ghiblification.

Business Insider reported that the paid ChatGPT service continued to generate images in the style of Studio Ghibli, but the free version produced this message:

I can't generate images in the style of Studio Ghibli because it is a copyrighted animation studio, and its artistic style is protected.

OpenAI released a System Card stating:

The model can generate images that resemble the aesthetics of some artists’ work when their name is used in the prompt. This has raised important questions and concerns within the creative community. In response, we opted to take a conservative approach with this version of 4o image generation, as we learn more about how 4o image generation is used by the creative community. We added a refusal that triggers when a user attempts to generate an image in the style of a living artist.

Hayao Miyazaki (age 84) is still alive and has recently written and directed The Boy and the Heron, which won the Oscar for Best Animated Feature in 2024.

Several lawsuits are pending against GAI companies, alleging that their tools illegally copied millions of copyrighted artworks to enable users to produce “new” works in the same style.

As The Hollywood Reporter reported, a federal judge recently

found that Stable Diffusion, Stability’s AI tool that can create hyperrealistic images in response to a prompt of just a few words, may have been “built to a significant extent on copyrighted works” and created with the intent to “facilitate” infringement.

As The Hollywood Reporter explained,

The lawsuit, filed in 2023, revolves around the LAION data set, which was built using 5 billion images that were allegedly scraped from the internet and utilized by Stability and Runway to create Stable Diffusion. It implicated Midjourney, which trained its AI system using the model, as well as DeviantArt for using the model in DreamUp, an image generation tool.

Artists have argued that GAI not only infringes their copyright but also violates their trademarks when it copies their distinctive styles.

As Fashion Industry Law explained about the Stable Diffusion case,

The visual artists-plaintiffs claimed that the style of their artworks is a form of trade dress protected by federal trademark law under the Lanham Act. Their complaint noted specific features of their respective works that represent their unique styles. The plaintiffs alleged that the defendants’ use of “CLIP-guided diffusion” technology in a trade dress database, where artists’ names are used as prompts to generate trade dress output, is likely to confuse the public with the artists’ trade dress due to their similarity.

Regarding the Stable Diffusion case, The Hollywood Reporter noted that

The court also stressed that Midjourney produced images similar to artists’ works when their names were used as prompts. This, along with claims that the company published images that incorporate plaintiffs’ names on its site, showcasing the capability of its tool, served as the basis for allowing trademark claims to move forward. It said that whether a consumer would be misled by Stability’s actions into believing that artists endorsed its product can be tested at a later stage of the case.

Presumably, OpenAI could not have allowed users to create images in the style of Studio Ghibli unless its tool was similarly trained using images scraped from Ghibli films.

Futurism reported that a former Showtime general counsel and AI expert suggested that Ghibli

might have the ability to claim OpenAI has violated the Lanham Act, which provides the basis for claims related to false advertising, trademark infringement, and unfair competition.

According to the expert,

Ghibli could argue that by converting user photos to 'Ghibli-style,' OpenAI is trading off the goodwill of Ghibli’s trademarks, using Ghibli’s identifiable style, and leading to a likelihood of confusion among consumers that this function is endorsed or licensed by Studio Ghibli.

As of this writing, Ghibli apparently hasn’t taken any legal action against OpenAI.

According to Futurism,

the company told Japanese news outlet NHK that a viral legal document, which claimed to be a cease-and-desist letter sent by the studio, was fake.