Copping My Style

Two companies that have enabled literal decades of creativity have both landed on the same question around the same time: Who owns a vibe?

One makes $5,000 guitars. The other makes software that they’d charge $5,000 a year for if they could. And creatives, as ever, are caught in the middle.

First up, we have Fender, the originators of one of the most important guitar designs of the past century, the Stratocaster. It’s been around so long that it’s basically generic at this point, often the starting point of many a luthier. But Fender disagrees on this point, with a single default judgment in a German court giving them just enough cover to call out their competitors, many of whom have been making Strat-like guitars for decades.

Surprisingly close to the center of this controversy, somehow, is John Mayer. See, a bit over a decade ago, Mayer wanted to make improvements to his Strat under his signature guitar deal with Fender. But Fender’s corporate culture was in the middle of a big shift, and the people in charge weren’t receptive to his ideas. So he jumped ship to PRS Guitars, whose founder, Paul Reed Smith, is still at the helm. Mayer found a close collaborator, and the two saw an opportunity to improve on a de facto industry standard, tweaking a solid guitar to make it even better for hardcore players.

They were small things—wider frets, a deeper slope to make it easier to hit those high notes—but they added up to be a better guitar that superseded its signature-guitar status.

John Mayer, showing off his Strat-like signature guitar, which is more popular than your average signature guitar.

The PRS Silver Sky, as it came to be called, got a lot of online mockery for looking kind of like a Strat. But the guitar quickly outpaced its surface details and became more popular than the Strat among serious guitarists.

Enter Fender, which recently sent PRS a legal complaint. They weren’t the only ones, but Fender was clearly looking for some way to protect its design, which has been around for about as long as Paul Reed Smith, a 71-year-old man, has been alive. Backlash has been swift—with many musicians siding with smaller manufacturers, reflecting a widespread belief that the Strat design is generic.

Meanwhile, a completely different push for ownership emerged this week on Capitol Hill. The company? Adobe, a clear favorite around these parts.

But this is worth paying attention to. Essentially, Adobe is attempting to put its might behind something called the CREATOR Act, which aims to give artists ownership over their distinct visual style, something at risk in the age of AI.

“If passed, this common-sense, bipartisan measure would address a gap in our intellectual property laws by protecting creators against style impersonation, and Adobe is proud to support it,” wrote Louise Pentland, the company’s chief legal officer and executive vice president of legal and government relations.

Broken down, Adobe is essentially pushing for something very similar to what Fender is—the right to protect a style, but in a very different medium. One is resolutely analog; the other is as digital as you can get. While the bill seems narrowly tailored based on a cursory read, the protecting-artists mess feels like it’s testing fate.

What do I mean by that? Well, going back to music, modern artists have found themselves navigating complex legal battles over songs that borrow a portion of a melody or even a general vibe. The infamous “Blurred Lines” case, in which the estate of Marvin Gaye sued over Robin Thicke, T.I., and Pharrell copying the general style (rather than the specific melody) of “Got to Give it Up.” That case has created all sorts of ugly precedent in the years since, and much of it is being driven not by the artists, but their estates.

This bill is literally asking to bring that mess to visual art, a situation in which interpretation is often even more abstract than with music. Admittedly, the bill has distinct limits—it has to be made clear whether, by AI or by a human creator, that the intent was to specifically rip off another person’s art. It carves out stuff that would already be protected under fair use, like using a work in a news story.

And as anyone might have noticed when OpenAI kicked off a Studio Ghibli meme last year, there would be clear cases where this might happen. At least from an AI standpoint, it’s timely.

But most art lives in an uncanny valley of indirect inspiration—where perhaps you saw something, and it inspired you to make something of your own. The gap between whether something is directly inspired or indirectly inspired is wide, and all matter of deeply messy legal battles could fill it.

One presumes the reason Adobe is the one pushing for this is because they see a potential business in licensing specific styles to AI platforms and Creative Cloud users, though the company does not explicitly state this. (Its Firefly product does something similar with stock photos.)

If this law passes, it wouldn’t be surprising if some big company started skulking around, looking for the next target to hit. (Given that this law would apply for up to five decades after the artist’s death, it might even apply to their estate.) You think this is hyperbole, but this is already what’s happening with music, where modern musicians preemptively make other artists songwriters on the off chance it sounds too similar.

Inspiration springs eternal, but one wonders if this attempt to protect creativity is just going to lead to a company resting on its laurels to try to smother the next generation of creatives.

Yes, we’re in a climate of constant slop, but a climate of constant lawsuits would probably be worse.