[Guest post] ‘Ghiblification’ and the Moral Wrongs of U.S. Copyright Law

The IPKat has received and is pleased to host the following guest contribution by Katfriend Angela Chung (Berkeley Law) reflecting on the flaws and grey areas for artistic protection through the moral rights of the Visual Artists Rights Act (VARA) in the era of AI, and discussing the controversies of the recent Studio Ghibli AI craze as a starting point to get at the heart of ethical concerns on artistic extraction. Here's what Angela writes: 

‘Ghiblification’ and the Moral Wrongs of U.S. Copyright Law

by Angela Chung

“Do everything by hand, even when using the computer.”

― Hayao Miyazaki

Recent discourse on Studio Ghibli AI art generation through OpenAI tools has included speculations that Hayao Miyazaki (the mastermind behind the studio's famous films) would find the use of AI in this manner objectionable to the core of his art. In addition to having previously criticized the use of AI tools to (grotesquely) imitate human movement, Miyazaki's films often condemn violence, environmental destruction, and overconsumption. He (and the studio) would likely abhor the idea that the White House posted a deportation meme evocative of the studio's style right at the Ghibli-GPT trend's peak.

Even with tools introduced by OpenAI to stop the generation of art in the style of living artists, user prompts are capable of circumventing this to still create a similarly styled output. Many lament the extractive nature of accessible art outputs, where AI companies train first and ask for forgiveness (fair use) later. Beyond even just the blackletter matter of infringement, this trend has forced the public to confront the ethical implications of exploiting artists and applying their style to images contrary to their artistic pursuits.

Unfortunately, the law does not currently provide a means for us to address those ethical questions. The Visual Artists Rights Act (VARA) provides some moral rights: non-economic rights personal to the author of a work. VARA was passed in compliance with the Berne Convention, the international copyright treaty that requires countries to provide the basic rights of attribution and integrity to authors. However, moral rights in the United States are much more limited than in European countries: the basic attribution and integrity rights extend only to authors of “visual works,” and these rights last only for the lifetime of the author. “Visuals works” were narrowly limited to singular/limited series editions of paintings, drawings, prints, sculptures, and photographs produced for exhibition purposes. Thanks to extensive lobbying from studios, motion pictures were explicitly exempted from moral rights protections.

And even if the artwork of Miyazaki was a “visual work” that could fall under the realm of VARA protections, moral rights in their current form would probably inadequately protect against the new frontiers of AI outputs.

Attribution rights allow an artist to claim authorship of their work, prevent others from putting an artist’s name on work they did not create, and the right to have their name removed from a work. Usually, artists seek to remove their name to maintain their reputation. The issue here is that while the names of Miyazaki or Studio Ghibli are not attached to these artworks, the style and specific elements of visual design are so iconic that the AI-outputs were referenced as "Ghiblified" in online discourse. But general styles alone are not a form of attribution under copyright law, so artists like Miyazaki cannot seek to remove an iconic "style" from another's AI-generated image.

On the other hand, integrity rights allow artists to prevent the intentional distortion, mutilation, or modification of a work if it harms an artist’s 'honor' or reputation. And if the work has “recognized stature,” then there may be a right to prevent intentional or grossly negligent destruction of a work. A work of recognized stature is one that is "of high quality, status, or caliber that has been acknowledged as such by a relevant community.” Castillo v. G&M Realty L.P., 950 F.3d 155, 166 (2d Cir. 2020). Assuming a visual work had the same fame and positive reputation as Studio Ghibli films have, a court would be likely to find it to have “recognized stature.” But what remains unresolved is whether AI outputs can be considered “distortion, mutilation, or modification." Case law has typically dealt with the physical destruction of tangible artistic works, such as famous murals being painted over. Because AI outputs sync together patterns of information based on vast amounts of visual data, it would be difficult for courts to analogize between the destruction of a physical art with the deconstruction – and then reformulation – of snippets of a visual work.

Does creating an output trained on images of a visual work–by digitally deconstructing and reconstructing its identifiable elements–constitute a distortion of the original work? Can modification harmful to the artist's honor and reputation arise simply through the ‘medium’ of AI (which likely opposes Miyazaki's principles of creating beautiful and human(e) art)? Is there mutilation if an AI-generated output capitalizes on the iconic imagery to promote harmful or hateful messaging?

As with all AI-based legal commentaries, the answers to these questions are unclear and in desperate need of thorough consideration. The heart of copyright law balances the public’s access to meaningful creations while still promoting said creativity by protecting authors. First, VARA can – and probably should – be vastly expanded to protect a wider range of artistic works. In the digital world we live in, some of the most cherished artworks are often outside the scope of VARA, despite the value we as a public attribute to those works. Or perhaps the future of copyright law could take principles from trademark law – providing protections for works when infringing creations “dilute” the value and recognizability of the original artist’s pieces. And future litigation should frame arguments in a way to push forward expansive definitions of what it means for art to be distorted, mutilated, or modified.

For now, the world waits to see how Studio Ghibli’s legal team will respond. And we, users, are free to generate the Ghibli slices of our digital lives as we please – ethics and artistic values aside.

Photo by Asude Sena Moya