Tech Pail Kids
I had a lot of fun over the weekend going down a deep, deep MidJourney rabbit hole. Some of you will know what I mean… you have an idea, it turns out great and then you want to see how far you can push it, where you can take it and what the limits are. The results of this particular rabbit hole are the grotesquely hideous ‘Tech Pail Kids’ below… an homage and parody of the original Garbage Pail Kids which were the brainchild of cartoonist Art Spiegelman and originally released by The Topps Company in the mid 80s. These ‘Tech Pail Kids’ feature prominent technology leaders from the last 20 years:
Despite all the fun that I had, these images bring up a lot of legal, ethical and societal concerns relating to generative AI’s ability to copy/mimic styles and create likenesses of people that haven’t given their permission for their image to be used. Let’s jump in and explore this some more…
But before we get into all the issues, it’s worthwhile outlining how I actually created all of the images above. This will help us explore some of the issues in a bit more depth.
Firstly, I used Midjourney to create some images of generic ‘Garbage Pail Kids’ and used the Style Tuner to create a custom style that I could then use repeatedly to create consistent images.
I then used this style to create the images you see above by asking Midjourney to:
/imagine the technology leader, in the style of garbage pail kids using the style tuner code with an aspect ratio of 5:7.
Some of these images came out perfectly on the first go, others I had to include an image of the tech leader in the prompt and it took multiple iterations using features such as zoom, vary and vary region, to get them to an image I was happy with.
I then used Pixelmator Pro where I created a template to drop the Midjourney images into. In this template I had the border, ‘peel here’ arrow, Garbage Pail Kids logo and lock-up for the name, as well as the alphanumerical code in the top right hand corner. I also overlayed a filter to make the images look aged.
To get the Garbage Pail Kids logo and name lock-up, I purchased them from an Etsy seller. Unfortunately this didn’t include the font for the name, so I matched that using WhatFontIs.com and downloaded a free version that matched called Windsor Demi.
So, let’s get into the issues surrounding what I’ve created. I’m not a lawyer or ethicist, so this won’t be exhaustive, but will give you an idea of the breadth and depth of all the issues at play here. I’ll also base this on UK law, where I’m based. It’s worth being aware that the legal issues will vary depending on the country you’re in as there’s a lot of variation across the globe…
TRADE MARK
This is the most obvious one to start with. ‘Garbage Pail Kids’ was originally trade marked in the UK on 24th February 1986 by The Topps Company. The trade mark was originally for Class 30 goods - “Confectionery, chewing gum and bubble gum, none being medicated” and then looks like it was updated on 23rd April 2009 to also include Class 16 goods - “Trading cards and stickers”. The last filing with the UK Governments Intellectual Property Office is on 20th May 2021 where The Topps Company has been granted protected status on the ‘Garbage Pail Kids’ trade mark, to be renewed on 9th November 2030. As recently as this year, Topps have been selling new Garbage Pail Kids trading cards in the UK, so I think it’s safe to say that I’m on shaky ground using the Garbage Pail Kids logo.
There’s nothing mentioned on the Etsy’s seller’s webpage about whether the logo and assets sold are allowed to be used and whether they have permission from The Topps Company to sell these assets. To cloud issues further, the seller is based in Australia, meaning there’s also international law to take into account, but let’s not go there. I’m actually very surprised that Etsy allows these assets to be sold on their marketplace, as their intellectual property policy requires that items sold on the platform must not infringe upon the intellectual property rights of others. This includes copyrights, trademarks, patents, and rights of publicity. Interestingly, you can only report a breach of this policy to Etsy if you are the rights owner, or authorised to report on their behalf.
COPYRIGHT INFRINGEMENT
Beyond the ‘Garbage Pail Kids’ trade mark, I could also be on the wrong side of UK copyright law. The reason for this is because using the ‘distinctive style’ of the series without the owners permission could be considered a copyright infringement. Copyright protection is granted automatically in the UK and covers making an adaption of the work and also putting it on the internet.
There are however, some exceptions to copyright in the UK. These include non-commercial research and private study, which is permitted when it is ‘fair dealing’1 and not copying the whole work. You are also allowed to copy works in any medium for teaching purposes as long as the use is solely to illustrate a point. There is also an exception for parody, caricature and pastiche. For example, a cartoonist may reference a well known artwork or illustration for a caricature.
UK copyright law also states that if you are making use of an exception to copy someone else’s work it is necessary for you to sufficiently acknowledge their work. However, such acknowledgement is not required where it is impossible for reasons of practicality.
All of this definitely confuses things as I could argue that using the Tech Pail Kids as part of this article is non-commercial research and for teaching purposes to illustrate a point. The images I’ve create could also be seen as parody, caricature or pastiche as they convey a new expression, are recognisably a derivative of the original work and use no more of the original work than is necessary for the parody, caricature or pastiche to be recognisable. You could also argue that my use of the Garbage Pail Kids logo is an acknowledgement of their original work, which is a requirement to make use of a copyright exception.
This is all very confusing and a huge grey area!
RIGHT OF PUBLICITY
Using the likeness of the tech leaders that I have referenced in the Tech Pail Kids without permission can raise issues concerning their right of publicity, which is more of a US concept, and protects against the unauthorised commercial use of an individual’s name, likeness or other recognisable aspects of their persona. However, in the UK this isn’t as clearly defined and as I’m not using the images commercially I should be ok in this area.
My images are also clearly not real images of the tech leaders I’ve used, but this is an area generative AI has got incredibly good at this year. If there is a risk that the images mislead the public into believing the individual tech leaders are endorsing or affiliated with a product or service then this can cross over into misrepresentation. This is another grey area as you could argue that featuring the tech leaders in images with the Garbage Pail Kids logo could be seen as them endorsing Garbage Pail Kids.
Again, this can get complicated and confusing!
DEFAMATION
The essence of a defamation claim in the UK is to protect an individual’s reputation from unjustified attack and is covered by the Defamation Act 2013. Due to the grotesque nature of Garbage Pail Kids and the Tech Pail Kid Images I’ve created it could be argued that I am showing the tech leaders in an unfair light. However, for an image to be defamatory it must be likely to cause serious harm to the reputation of the individual. This means lowering the individual in the estimation of right-thinking members of society in general, or causing them to be shunned or avoided. The defamatory images also need to be published, which they are as they are attached to this article.
In practice, the UK court would need to consider whether the a reasonable person would consider the images to be joke or piece of satire rather than a statement of fact about the individual. However, even satirical content can be defamatory if it implies a baseless fact that discredits the individual's reputation. The burden of proof of harm is on the claimant though, and they have to show that the image has caused, or is likely to cause, serious harm to their reputation.
I think it’s incredibly unlikely that my Tech Pail Images would cause serious harm to any of the tech leaders featured, even if they were widely distributed, so I feel pretty safe on this one.
AI MODEL BIAS
The bias issues in generative AI models are well documented and these issues certainly raised their head when I was creating Tech Pail Kids. There are a few different bias factors at play here:
There are the biases inherent in the Midjourney model that are present because of the biases in the data that it has been trained on.
There are the biases present in the original Garbage Pail Kids collection, which I reference in my prompt and will have influenced the images created.
There are the biases of gender, age, ethnicity etc. amongst the technology leaders I have created images of.
Because of many of the bias factors outlined above, there was one technology leader that was more challenging to create as a Tech Pail Kid than the others:
It was difficult to get Midjourney to adhere to Satya Nadella’s Indian heritage with the model repeatedly creating images with a lighter skin tone. To get the result above I had to use ‘Indian’ in the prompt, whereas with the other images I didn’t have to state the individual’s ethnicity to get the result I wanted. To put it bluntly, MidJourney defaults towards caucasian skin tones.
However, the representation in the Tech Pail Kids is not just a reflection of Midjourney’s capabilities but also of the broader societal context, including the diversity in the original Garbage Pail Kids and of leadership in the tech industry.
ENVIRONMENTAL IMPACT
Generative AI technologies, and especially image generating ones, are currently very nascent and it takes a lot of iteration to get to an image that you want. To be honest, it’s very hit and miss - sometimes you get what you want first time, others it takes multiple attempts. It’s more like a game of chance than anything else 🎲!
Because of this (and other factors), there is a high environmental impact to using the technology. To create the 9 Tech Pail Kids above, I ended up creating a total of c.1,400 images in Midjourney. That’s an average of over 150 images for each final image - a huge amount of wastage 🤯. There is still very little research quantifying the impact of using generative AI technologies on the environment, so it’s hard to say how much of an impact 1,400 images being generated has. Safe to say it’s a much bigger impact of 9 images though! If the technology was more mature and it was easier to steer the outputs then that would be a huge step towards reducing its environmental impact.
MORAL & ETHICAL RESPONSIBILITIES
Ultimately, the moral and ethical responsibilities fall on both the generative AI technology provider and the creator using the technology. There needs to be more awareness and education of the potential misuse of generative AI technology and the risks involved in using it. Just because these tools enable us to reproduce images of people without their permission and/or in the style of a famous artist doesn’t mean that we should.
There’s a responsibility on all of us to ensure that generative AI technologies aren’t perpetuating societal biases, especially when portraying different ethnicities, genders, and cultural backgrounds. We need to ensure that we aren’t reinforcing outdated or harmful stereotypes and this involves being critically aware of the sources of the data generative AI technologies are trained on.
We also need to be more aware of the environmental impact these technologies are having with more research needed to quantify their impact. This information should be presented to the user at the time of generation to help them to decide how best to use the technology and tracked/aggregated over time so people can see the impact of their usage.
IN SUMMARY
'Tech Pail Kids' is a playful homage to the classic 'Garbage Pail Kids' trading cards and has allowed me to explore the creative, legal and ethical dimensions of AI-generated art. These dimensions include trademark concerns with 'Garbage Pail Kids', potential copyright infringement, the ambiguous territory of public rights and defamation, and the pressing issue of AI model bias, particularly in representing diverse ethnicities accurately. The environmental impact of generative AI, due to the high number of iterations needed for satisfactory results, is also a key issue.
Both AI technology providers and creators/users have a responsibility to navigate these complex moral and ethical issues, advocating for greater awareness, responsible usage, and research into the broader implications of these rapidly evolving technologies.
Oh, and for those of you that are wondering…. yes, I did go there…🤓
“The future is already here, it’s just not evenly distributed.“
William Gibson
‘Fair dealing’ is a legal term used to establish whether a use of copyright material is lawful or whether it infringes copyright. There is no statutory definition of fair dealing - it will always be a matter of fact, degree and impression in each case. The question to be asked is: how would a fair-minded and honest person have dealt with the work?