Drawing Outside Copyright's Lines

“I would never wish to incorporate this technology into my work at all. I strongly feel that [AI] is an insult to life itself.” —Hayao Miyazaki

Studio Ghibli is a Japanese animation company established in 1985 by artist Hayao Miyazaki. Studio Ghibli crafted a distinguishable artistic style of animation with international appeal. Today, the studio is worth $245 million and maintains strict licensing and film distribution rights throughout North America, Europe, and Asia.

On March 25th, OpenAI generated images replicating the Ghibli style of animation went viral on the internet. A copyright controversy ensued when the official White House X and Instagram pages shared Ghibli style AI generated images of migrant deportations. OpenAI’s use of a beloved animated style prompts serious concerns about copyright protection of artistic works in the age of artificial intelligence. Ghibli may leverage an infringement suit under the Copyright Act of 1976 against OpenAI if it can bypass the fair use limitation on its exclusive rights to the disputed artistic style.

Courts are generally reluctant to treat artistic style alone as a copyrightable expression because art inherently borrows from others' ideas. Accordingly, copyright law affords protection to authored expressions of ideas that contain a minimal level of creativity while also permitting fair use to promote the progression of artistic development. In Steinberg v. Columbia Pictures Industries, the Southern District of New York assessed a copyright infringement action concerning a cover illustration for The New Yorker magazine and the Moscow on the Hudson movie poster. The court held that to succeed in a copyright infringement action, a plaintiff must prove there is “substantial similarity between the copyrighted and accused works” such that an average observer would “recognize the alleged copy as an appropriation of the copyrighted work.” The Steinberg court held that the alleged copying need not be of every detail and instead focused on the stylistic similarities between the movie poster and the magazine cover. Holding that style is an ingredient of artistic expression, the court found that the whimsical and sketchy style used in the poster was substantially similar to the hallmark style Steinberg used in his magazine cover. The court noted that both works depicted four city blocks in detail, used a minimalist and dull design for the background, contained a narrow band of blue wash to represent the sky, and delineated the horizon with a band of red. Accordingly, the court concluded that while the works were not identical, parts of the work could be mistaken for one another by a lay observer.

To prove infringement by OpenAI of Studio Ghibli’s copyrighted work, it must be established that the platform had access to Studio Ghibli material and that substantial similarities exist between the expression of ideas by Studio Ghibli and OpenAI.

First, having an artificial intelligence program as the “creator” of the controversial images complicates the determination of prior “knowledge” or “access” to Studio Ghibli’s work. However, as demonstrated by the OpenAI input below, the platform clearly recognizes “Studio Ghibli” and understands what it means to create something in its “style” or “theme.” This is analogous to the designer in Steinberg having access to the copyrighted image that sparked the controversial movie poster image. The intimate understanding of Studio Ghibli is further underscored by the completely different expression generated by a simple input for “anime” theme than an input for the specifics of Studio Ghibli.

Unlike how the Moscow on the Hudson cover copied Steinberg’s expression of New York City by depicting nearly the same image by setting the buildings around the same wide streets, using a colorful forefront, and dull background, OpenAI is not recreating Studio Ghibli images. However, OpenAI is not merely drawing inspiration from Studio Ghibli either—it is replicating the unique artistic expression to generate images in its likeness. Studio Ghibli animations are defined by a distinct visual style, marked by hand-drawn aesthetics, delicate line work, soft color palettes, and expressive character features. Just as the “whimsical sketchy style” of the buildings in Steinberg made the image unmistakably Steinberg’s, Ghibli’s use of hand-drawn lines makes his animations uniquely identifiable and distinguishable from those of other creators.

OpenAI’s programming completely replicates Ghibli’s inherent style and applies it to any photo. OpenAI profits from the popularity of such trends to solicit additional money from donors to continue its practices. A potential remedy is injunctive relief for copyright infringement, requiring OpenAI to cease replicating images with Ghibli’s style. Such injunctive relief is important not only to Ghibli specifically, but the entire animation industry to prevent OpenAI from replicating other works of art. Continuous copyright infringement could result in economic harm due Ghibli’s loss of licensing opportunities and for artists whose jobs would be eliminated because of AI technology.

Ximena Reyes Torres is a first-year law student at American University Washington College of law and is interested in international humanitarian law.

James Perez is a first-year law student at American University Washington College of law, interested in white collar criminal defense and commercial litigation.

Eva Russo is a first-year law student at American University Washington College of law, interested in international trade and government investigations.

Image: Jernej Furman from Slovenia, OpenAI logo with magnifying glass. The photograph of the editor of this blog is used with permission.