AI Image Outputs "in the style of ..."

Document Type

Book Chapter

Publication Date

3-2024

Abstract

Longstanding positive law and commentary hold that copyright does not protect literary or artistic style. Style is an “idea” freely available to teach or inspire other creators. For example, as one US court held, “Picasso may be entitled to a copyright on his portrait of three women painted in his Cubist motif. Any artist, however, may paint a picture of any subject in the Cubist motif, including a portrait of three women, and not violate Picasso’s copyright so long as the second artist does not substantially copy Picasso’s specific expression of his idea.” Under traditional US copyright approaches, the copying of artistic style, permissible in its own right, might figure in the infringement analysis of substantial similarity. As a federal district court held, in a case concerning an Eastward-looking variation on Saul Steinberg’s famous Westward-looking New Yorker magazine cover depicting a New Yorker’s myopic view of the world, “Even at first glance, one can see the striking stylistic relationship between the posters, and since style is one ingredient of ‘expression,’ this relationship is significant. Defendants’ illustration was executed in the sketchy, whimsical style that has become one of Steinberg’s hallmarks.” But even there, stylistic similarities alone will not warrant a finding of infringement; rather the defendant must have copied specific expressive elements as well.

Disciplines

Intellectual Property Law | Law

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