Making Style Copyrightable as "Trade Dress" is a Terrible Idea
In their never-ending quest to stop AI, luddites are shooting their own feet repeatedly.
An ongoing lawsuit filed in February 2024 could reshape the future of art and creativity.
The case, brought by a group of artists against Stability AI, claims that the use of AI-generated art tools infringes on the rights of traditional artists by replicating their unique styles without permission. On the surface, this might seem like a straightforward attempt to protect artists from having their work co-opted by technology or big business.
However, as I have pointed out in previous work such as my Marxist Primer on Plagiarism, various articles on Anti-AI and luddite elitism, the documentary embedded just below, and reflections on people confirming all of my criticism, these things are more or less a ruse to maintain and expand property.
The plaintiffs of the lawsuit in question, Sarah Andersen v. Stability AI, argue that an artist’s style—essentially, the visual and aesthetic traits that define their work and not the work itself—should be protected under a concept known as trade dress, redefining style as intellectual property. While this might sound like a victory for artists, it actually opens the door to a far more restrictive and controlled creative environment.
To understand, we need to know what trade dress is, how the lawsuit uses it to attempt to make style copyright-able, and why many small artists support a measure that could ultimately work against them. The underlying view of this lawsuit ultimately reinforces a winner-takes-all dynamic that benefits those with capital rather than artists.
What is trade dress, how would it make style “copyrightable,” and why is that bad?
Trade dress is a legal concept under trademark law that protects the visual appearance of a product or its packaging if that appearance is distinctive and signifies the source of the product. It’s most commonly used to protect things like the shape of a Coca-Cola bottle, a restaurant’s decor, or a store layout. The key idea is that the appearance is so closely associated with a particular brand that it serves as a form of branding or identity in the marketplace.
The plaintiffs in the Stability AI lawsuit are trying to argue that an artist’s style—essentially, the way their work looks—can be protected as trade dress. This would mean that if a particular style becomes closely associated with a specific artist, no one else could use that style without potentially infringing on the artist’s rights. They’re essentially trying to treat an art style like the unique packaging of a product, which would allow them to claim ownership over it.
If they succeed, this could set a legal precedent where styles—things all artists naturally borrow, share, and evolve over time—could be locked down and controlled. Though on a strictly individual basis, some “small artists” would certainly benefit, the reality is that most wouldn’t.
First, starving artists are not known for their abundant wealth. Lawsuits are not a cheap prospect, especially when going up against large companies, and there’s a reason why there are so few IP cases where the little guy wins. A corporation with vast money and resources can outgun and outlast the little guy in court on procedure alone. Further, if there is a reasonable chance they could lose, they will likely work to settle rather than set or reinforce a precedent that puts them at a disadvantage. Settling certainly helps an individual plaintiff, but it does not set or expand on any legal precedent with a ruling.
Second, if a style is property, then it can be sold. Transforming it into property means that those with the means to purchase property can own it. If a starving artist creates something and a company rips it off (which we have all seen before), the starving artist rarely gets vindication. But if style were property, the corporation could offer them a deal they can’t refuse—buying their property.
Then, Disney (or whoever) owns it. Disney owns Star Wars. Make something that cribs from Star Wars’s style? You’re infringing on Disney’s rights. That applies to every style that exists. Individual human beings have needs, wants, and limited time on earth. The styles of artists who make an impact will outlast them, and so will companies. An artist might not sell their style, but what about a descendant of theirs? Maybe an heir falls on hard times, and Disney fixes it for them with a check. Maybe there is no heir, and their property will go up for auction.
Once a large entity owns it, that’s it. Potentially, everyone would have to license the ability to draw/model/print, I don’t know, grungy spaceships with glowing engine trails and vents on the side—or whatever a small artist made.
This becomes a larger problem when we actually understand creativity and then apply what we know to AI.
We learn to write by copying down the alphabet. Musicians learn to play by practicing scales. Painters learn to paint by reproducing masterpieces. Remember: Even The Beatles started as a cover band. Paul McCartney has said, “I emulated Buddy Holly, Little Richard, Jerry Lee Lewis, Elvis. We all did.” McCartney and his partner John Lennon became one of the greatest songwriting teams in history, but as McCartney recalls, they only started writing their own songs “as a way to avoid other bands being able to play our set.” As Salvador Dalí said, “Those who do not want to imitate anything, produce nothing.”
- Austin Kleon, Steal Like an Artist
Just like people, AI works by remixing everything. It takes vast amounts of data—text, images, even sounds—and combines them to create something new, or at least something that seems new. The primary difference is that a human being pulls from a human life's ever-shifting sea of sensory input. We pull from the world around us, our senses, our experiences, and these things are continual; they have no endpoint, and we are simply a part of it.
AI pulls from a static dataset of “final” data. While that data can be updated, it is stationary and inert. Nonetheless, it’s doing the same thing with that data we are: editing it.
AI’s data also isn’t just a direct copy of the original work. Midjourney’s data contains no images; it contains extremely detailed descriptions of images that are only interpretable by its difference engine. A text-based AI like ChatGPT contains no actual text or documents but rather a vast array of patterns learned from a large text dataset. During training, the model is exposed to various texts and learns the statistical relationships between words, phrases, sentences, and larger structures. These learned patterns allow the model to generate coherent text in response to prompts, simulating understanding and conversation.
Sounds a lot like human memory, doesn’t it? Obviously, it’s not exactly the same (see the previously mentioned limitations around sensory input and static datasets), but the fact is, the way humans and AI generate art is essentially trying to remember what other stuff looks like and then expressing it with a variation or from another perspective.
If we make style copyrightable, creativity is fucked.
But why would small artists support such a measure?
On the surface, it seems baffling that small artists would support a measure like this. However, the key reasons why some might support it, despite the obvious long-term risks, boil down to a few factors.
Many small artists genuinely do worry about AI-generated art flooding the market and undercutting their work. The lawsuit is framed as a way to protect artists from “being replaced” by AI, so it appeals to their immediate concerns. This fear drives them to support a promise of protection, even if the long-term consequences are problematic.
Further, many artists do not fully understand how intellectual property law works in practice, thinking that stronger IP protections will safeguard their work from being copied or misused. But these laws often become tools for those with more resources—like corporations—to consolidate control over creative content, leaving small creators more vulnerable. Further, legal battles are notoriously expensive and drawn out, especially in IP law. Large corporations using their financial resources to dominate these battles due is a well-documented reality–though in today’s information climate, invalidating information is often viewed as “misinformation” or “disinformation.”
This, I think, is downstream of a temporarily embarrassed millionaire mindset. The fact that a vast majority (probably all) of the artists involved in these plagiarism moral panics and lawsuits are “leftists” makes this particularly interesting, and I have written about how that old capitalist ideology thrives among people who think they hate capitalism.
The term “temporarily embarrassed millionaire” itself is often attributed to the American author John Steinbeck, who noted this phenomenon during the Great Depression. Despite facing severe economic hardships, Steinbeck observed that many Americans still supported policies that favored the wealthy because they saw themselves as temporarily embarrassed millionaires—people who were momentarily down on their luck but destined for future prosperity.
There’s a certain appeal to the idea of owning and having legal control. It gives artists a sense of security and power over their work. However, as noted, if a style becomes property, it can be acquired, leading to the same consequences other property law has.
Another issue is that, as I alluded to a moment ago, this lawsuit taps into a broader moral panic that has been promoted by influential voices in the art community and beyond (Hbomberguy’s “Plagiarism and You(Tube)” comes to mind)—that originality and personal style must be rigorously protected against theft! While ostensibly well-intentioned, this narrative overlooks art’s collaborative and iterative nature. Influenced by this discourse, small (particularly leftist) artists might support the lawsuit because they see it aligning with their values of protecting originality and creativity.
This is, of course, ironic. The supposed ideals of art and “the left” revolve around freedom and inclusivity rather than supporting bourgeois property dynamics. However, the artists and influencers at the forefront are successful; they have the reach and resources to promote a narrative. The smaller artists want to be in their position but do not understand the material differences between themselves and successful figures beating this drum.
Successful figures in this area are angling for the next step (assuming they haven’t already taken it): bourgeoisification (class mobility). They want to develop studios or content empires and socialize production under their banner. They are either angling to get into the capitalist class or are already in it. Their interests are not the same as those of independent artists at all.
Class mobility on a material basis (worker/subordinate to owner/ruler) is something the vast majority of independent artists will never experience. IP law will never benefit them.
But don’t artists just want to be compensated for their artistic labor?
Yes, that is very likely the motive for most who support the lawsuit! But the current intellectual property system isn’t about rewarding creativity or effort—it’s about rewarding ownership of what becomes the “winning” property in the market.
In the marketplace, it’s not the labor or creativity itself that gets rewarded, but rather the ownership of the intellectual property that dominates or “wins.” This is why we see huge corporations making billions off of popular franchises (or styles!), while the countless artists who might have influenced or contributed receive nothing.
IP creates a winner-takes-all scenario. If IP becomes dominant—whether through a blockbuster movie, a bestselling video game, or a viral piece of art—the entity that owns it reaps all the rewards.
In this context, intellectual property law becomes a tool not for protecting artists but for consolidating power in the hands of those who can control the “winning” properties. The more resources you have, the more you can secure and enforce your ownership over a particular style or concept.
This is why large corporations are so invested in extending and expanding IP laws—they want to lock down their winning properties and ensure that they continue to generate revenue, often at the expense of smaller creators.
And that is exactly what this is: a bid to expand IP law. Independent creators of all kinds need to understand that does not benefit them.
Wanting to get paid for one’s labor, to retain the value of the labor, is the correct impulse. However, this is advocacy to expand the current dynamic that specifically does not reward labor. This winner-takes-all approach is not about protecting a particular style from AI or plagiarism—but about reinforcing a system that values ownership over creativity and profit over the actual labor that goes into making art.
Conclusion
While the promise of protecting one’s style from AI or other forms of perceived plagiarism might seem appealing, the reality is that expanding intellectual property laws to encompass artistic styles will likely do more harm than good. It won’t be the small, independent artists who benefit from these changes—it will be the large corporations with the resources to buy, control, and enforce these new rights.
Art has always been about borrowing, sharing, and building upon the work of others. It’s a collaborative, iterative process that thrives on freedom and accessibility. But if styles become locked down as proprietary assets, that creative freedom could be severely restricted, with the power to create, innovate, and even express oneself increasingly concentrated in the hands of a few.
The current intellectual property system is not designed to reward creativity or labor; it’s designed to reward ownership. By supporting measures like those proposed in this lawsuit, small artists may inadvertently contribute to a system that prioritizes profit over the actual labor and creativity that goes into making art.
As artists, creators, and supporters of the arts, we must critically evaluate the consequences of such legal changes. Instead of expanding the reach of intellectual property laws, we should advocate for a system that values and compensates the creative labor of all artists, not just those who own the "winning" properties. True artistic freedom and innovation can only flourish in an environment where creativity is shared and accessible to all.
In the end, the choice is ours: Do we want a world where creativity is free and open, or one where it’s bought, sold, and controlled? The answer will shape the future of art for generations to come.
Wow, so well explained. I dont see how anyone would be for IP Laws after reading this.
You should definitely do a quick video off this essay.