Artificial Intelligence and the Right of Publicity: The Undiscovered Country

Artificial Intelligence (“AI”) is facilitating the development of “deepfake” technology that makes possible hyper-realistic depictions of people saying, singing, or doing things they didn’t actually say, sing or do. For example, Peter Cushing and a young Carrie Fisher starred in the motion picture “Rogue One: A Star Wars Story” even though he had been dead for years and she was 60 and didn’t actually appear in the motion picture.[1] Harrison Ford played both an 80-year-old and “de-aged” 40-year old Indiana Jones in the 2023 film “Indiana Jones and the Dial of Destiny.[2]”  Although James Dean died in 1955, it was recently announced that he will star in an upcoming film called “Back to Eden” that has yet to begin production.[3]

All of the above depicted identities and performances were or will be used with the permission of the individuals depicted or their estates. However, other AI-generated uses of peoples’ identities are being made without such permission. Several hyper-realistic deepfake videos of Tom Cruise were posted on TikTok.[4]  AI was used to generate a deepfake imitation of Drake and the Weeknd performing a song they didn’t actually create or perform that generated 600,000 streams on Spotify and 15 million views on TikTok.[5] AI art generators offer art “in the style of” numerous visual artists on the generators’ websites, and use the artists’ names without permission to distribute art the artists never actually created.[6]

The unauthorized uses described above illustrate the promise and peril of AI in the audio- video marketplace. AI now makes hyper-realistic digital animation of peoples’ actions, artistic styles and performances, regardless whether the people depicted granted permission, actually did what the deepfakes make it appear they did, or are living or dead. It has created, for example:

• A commercial in which a deepfake Humphrey Bogart promotes a vape pen to children, saying, “Here’s looking at you, kids.”
• An X-rated film in which a deep fake JFK and Marilyn Monroe graphically depict their extramarital affair.
• A romantic comedy based on the lives of and starring a virtual Brad Pitt and Angelina Jolie, without the permission of or input from the real actors.
• A political ad in which Hunter Biden appears to sit in a room with foreign individuals, while over a speakerphone the apparent voice of President Joe Biden is heard promising favorable treaty terms if the people in the room pay his son a generous consulting fee.
• A political ad which purports to show former President Donald Trump sexually assaulting a woman who won a civil judgment that he sexually assaulted her.
• A TikTok video that appears to show anyone, including you, shoplifting, taking illicit drugs, abusing their spouse, or engaging in other unsavory, dishonest, illegal, or scandalous behavior you did not actually engage in.

As the above illustrates, AI-generated deepfakes have the potential to not only infringe IP rights, but ruin lives and destabilize democracies.

Can current right of publicity law stop any of the above? Not really. More precisely, sometimes, in a few states, but not always, and usually not in what might be considered the most egregious situations. In a nutshell, one could probably stop some AI-generated uses of identity in advertising in many states, except for media advertising or political advertising, as discussed below. One could sometimes stop some AI-generated uses of identity in merchandising, though First Amendment or copyright preemption concerns create doubt. And one probably could not stop most media uses in most states in most circumstances, due to current statutory restrictions or case law.

One needs to understand something about current right of publicity law to understand why this is so.

Background Regarding the Right of Publicity

What is the right of publicity? Arguably, the most intuitive of intellectual property rights. If copyright and patent law protect what you create, and trademark law protects what you symbolize, the right of publicity protects who you are. It prohibits the unauthorized commercial exploitation of one’s name and likeness, and sometimes, voice or other indicia of one’s identity.

The right of publicity is a creature of state law, and varies significantly from state to state.  About 38 states recognize it for the living, while about 20 recognize it for the dead. The various states have different terms, or no terms, of posthumous duration. Depending on the state, it lasts for your lifetime, or for 20, 30, 40, 50, 70 or 100 years after death, or, if against if the right is commercially exploited after death, indefinitely.[7]

Because of the state law nature of right of publicity law, what is legal in one state often is illegal in another. For example:

• Celebrity impersonators violate New Jersey, Tennessee and California right of publicity law as described below, but by statute are permitted in Nevada.[8]
• Unauthorized use of “voice” can violate California law, but not Michigan law, which does not recognize a publicity right in “voice” as described below.[9]
• Taking virtually any indirect indicia of identity can violate California law, but must use one’s “name, portrait or picture” for advertising or trade purposes to violate the right of publicity under New York and Wisconsin law.[10]

What unauthorized identity uses does the right of publicity prevent? Most commonly, the right of publicity has been applied to unauthorized uses of a person’s name or likeness, and it likely would apply most often to unauthorized AI-type uses, though no case has done so and one court has indicated that it may dismiss such a claim. The right of publicity could also reasonably apply to unauthorized AI-type uses in merchandising, though First Amendment and copyright preemption defenses have been recognized unpredictably.[11] Finally, traditional right of publicity claims have been brought for unauthorized media uses, but with two exceptions involving “public performance” and “predominantly exploitative” uses in one state described below, such uses have virtually never been blocked o because of free speech concerns. No court has addressed the issue in an AI setting, though one court has announced that it is about to do so.[12]

AI and the Right of Publicity-Advertising Uses

Why would AI-generated uses of identity in advertising usually be prohibited by the right of publicity? Because it has barred unauthorized commercial uses of the actual appearances of people since its inception.  Indeed, the very case to coin the phrase and create the “right of publicity” involved the unauthorized use of baseball players’ images on baseball trading cards to sell chewing gum.[13] Subsequent case law found the right of publicity infringed when companies made unauthorized advertising uses of look-alikes, at least in New York,[14] sound-alikes, at least in California (though not in Michigan),[15] and robotic simulations in evocative settings, again in California.[16] A hyper-realistic AI-created image, performance or voice in advertising likely would be treated no differently.  Even here, however, there are significant exceptions to right of publicity liability for media advertising or political advertising, which are thought to be core expressive or political speech and thus protected by the First Amendment.[17]

AI and the Right of Publicity-Merchandising Uses

How well would current right of publicity law protect AI-generated uses of identity in merchandise?  The right of publicity traditionally prohibits unauthorized use of most traditional merchandise, though recently First Amendment or copyright preemption defenses have been more commonly and unpredictably applied. For example, The case creating the right of publicity involved baseball trading cards as cited above, but a California appellate court and the Ninth Circuit Court of Appeals later found similar uses of sports’ figures’ names and likenesses protected speech or preempted by the Copyright Act.[18] On the other hand, a district court rejected a First Amendment Defense to the unauthorized First Amendment defense use of Tiger Woods’ name on a Franklin Mint Commemorative Medal, rejecting an argument that it constituted “medallic speech.”[19] Woods v. Franklin Mint, 1997 WL 33306646 (C.D. Cal. July 3, 1997).  In the AI setting, one court in an unreported decision found a right of publicity claim involving NFT’s preempted by the Copyright Act.[20]

AI and the Right of Publicity-Expressive or “Media” Uses

Courts usually have rejected right of publicity claims involving “expressive” uses of someone’s identity in media such as books. Music or motion pictures on First Amendment grounds, though there are two exceptions. They have used a carousel of up to eight conflicting and incompatible tests, standards and guidelines to do so, making confident predictions in any particular case difficult.[21]

The major exception involves “performance.” Taking someone’s “performance” without permission has been held by the Supreme Court and various lower courts to violate the right of publicity and not constitute protected speech in a few states.[22] This exception is limited to the use of an artist’s “performance” only; taking and use of performance in connection with any biographical material about the artist would remain protected speech.[23]  And some states, such as New York, limit their right of publicity to uses “for purposes of trade,” meaning any performance in expressive works such recorded music, television, motion pictures, or other media likely does not violate the statute in those states.[24]

The second exception exists only in the state of Missouri or courts applying Missouri right of publicity law. Under the “predominant use” test the Missouri Supreme Court adopted to evaluate First Amendment defenses to right of publicity claims, a use of an individual’s identity in media, such as a comic book, can violate the right of publicity and not constitute protected speech if the use of identity is deemed to be “predominantly exploitative” in nature rather than expressive.[25]

AI, the Right of Publicity and Defamation Law?

Could defamation law, either with the right of publicity or as a substitute for it, stop AI-generated uses that make it appear people said or did things they actually did not say or do?  A full discussion of this issue is beyond the scope of this article, but the short answer is, not often, and not well. Like the right of publicity, current defamation law is the product of a complex interplay between state law and federal First Amendment jurisprudence, and as a result, traditional defamation law contains exceptions and hurdles that make its application to the AI-generated uses described above unpredictable, and often ineffective.[26]

Defamation generally bars the publication of false factual statements about a person that injures him or her.[27] In the AI setting, proving that an AI-generated use was “factual,” as opposed to a work of fiction, could be difficult, and courts have been reluctant to find defamation liability for statements made in a dramatic work.[28] Further, a “public figure,” that is, a person well-known to an appreciable portion of the public, cannot recover for defamation unless he or she proves by clear and convincing evidence that the statement objected to is not only factual and false, but that the falsity was communicated or published with “actual malice,” that  is, that the person who made the statement either knew it was false or acted with a reckless disregard for its truth or falsity.[29] That would be difficult or impossible to prove in many of the hypotheticals mentioned above.

Applying Current Right of Publicity Law to Foreseeable AI-Generated Uses

How would the AI hypotheticals or recent real actions mentioned above fare under current right of publicity law? Let’s look at each in turn.

• Deepfake Humphrey Bogart selling vape pens?

Current right of publicity law could probably stop this in most states. It represents a classic “advertising use” right of publicity claim.

• X-rated JFK and Marilyn Monroe film?
• Deepfake video of Tom Cruise on Tik Tok?
• Deepfake video of you doing something scandalous?

Current right of publicity law probably could not stop the above three in any state on right of publicity grounds. These uses likely would all be deemed expressive in nature, and thus protected by the First Amendment to the U.S. constitution.

• Unauthorized Brad Pitt and Angelina Jolie romantic comedy?

Current right of publicity law might be able to stop in a few states on the grounds that their hyper-realistic depiction constituted unauthorized “performances,” but even in those states, it probably could not be stopped if the performances were deemed biographical in nature, again on First Amendment grounds.

• President Biden and former President Trump political ads?

Current right of publicity law probably could not stop this, as such ads would likely be deemed core political speech.

• Deepfake Drake and the Weeknd musical performances?

Current right of publicity law might be able to stop this in the few states that have recognize a right of publicity in an artist’s “artistic style,” but recent copyright preemption case law makes it doubtful even in those states, and it could not be stopped in the many states that have not considered and recognized publicity rights in “artistic style.”

• Using artists’ names to sell art in their “style” that they didn’t create?

Maybe in some states, but this theory is already under attack on copyright preemption and First Amendment grounds, and one court has tentatively advised it intends to dismiss this claim as described above.

AI and the Right of Publicity-Tentative Conclusions

Firm conclusions about how the right of publicity interacts with AI-generated works is at present premature, as literally no reported decision has discussed or addressed any of the issues described above. How courts will address these issues really is “uncharted territory.”

Nevertheless, as the above survey of current law demonstrates, several tentative conclusions are apparent:

First, current right of publicity law is not up to the task of stopping the type of AI-created identity uses described above. The right of publicity is too limited, and the case law is too inconsistent amongst the various states, to predict with confidence that said uses could be stopped by current law in most states. Even the states providing the broadest right of publicity protection do not appear adequate to stop what is obviously, technologically, possible.

Second, recognizing the inadequacy of current law, “power” plays such as the Writers Guild of America (“WGA”), Screen Actors Guild/ American Federation of Television and Radio Artists (“SAG/AFTRA”) and Universal Music Group (“UMG”) are negotiating to get rights beyond those proved by current law. The WGA and SAG/AFTRA are presently in the midst of a protracted strike involving this issue among others, and it has recently been reported that UMG is negotiating a master license that will provide it with a revenue stream from AI training uses of its content, though not necessarily the artists on its labels.[30]  However, that won’t help most of us even if  they get them, as most of us are not members of those guilds or artists on those labels.

Third, a new and expansive federal right of publicity statute is the only way to effectively address these issues. The Senate IP Subcommittee considered the issue at a hearing on July 13, 2023.[31]  Whether Congress will act is uncertain; it has not acted on a federal right of publicity statute proposed by the American Bar Association at the behest of the International Trademark Association for decades.[32] Nevertheless, for all of our sakes, let’s hope that it does.

[1] https://www.theguardian.com/film/2017/jan/16/rogue-one-vfx-jon-knoll-peter-cushing-ethics-of-digital-resurrections.

[2] https://variety.com/2023/film/awards/indiana-jones-5-harrison-ford-de-aging-not-working-1235618698/.

[3] https://www.foxnews.com/entertainment/james-dean-reportedly-appearing-new-film-ai-experts-weigh-benefits-stars-after-death

[4] https://www.tiktok.com/@deeptomcruise/video/7223086851236646149?lang=en. ; https://www.tiktok.com/@deeptomcruise/video/7107760658099326214?lang=en. ; https://www.tiktok.com/@deeptomcruise/video/7091880898265681157?lang=en.

[5] https://www.youtube.com/watch?v=COok3YO1L5w; https://musictech.com/features/music-deepfakes-ai-drake-grimes-weeknd/#:~:text=Most%20recently%2C%20UK%20band%20Breezers,in%20less%20than%2048%20hours.

[6] https://stability.ai/.

[7] Mark S. Lee, Entertainment and Intellectual Property Law §3:58 (Thomson Reuters 2023).

[8] See Zacchini v. Scripps-Howard Broadcasting, Co., 433 US 562, 576 (1977) (showing a human cannon ball’s “entire act” on the evening news violated Ohio right of publicity law and not protected speech); Estate of Elvis Presley v. Russen, 513 F.Supp 1339 (D.N.J. 1981) (unauthorized Elvis Presley tribute show violated the Presley Estate’s rights of publicity under New Jersey law); Sheffield Ent. Inc. v. Main Event, Inc., 02 CV 3927 (C.D. Cal. Dec. 23, 2003)(unauthorized Frank Sinatra tribute show at the Venetian Hotel in Las Vegas violated Sinatra family’s rights, but only because Nevada right of publicity law did not apply); Nev. Rev. Stats. §§20-201 to 20-211; §25-840.01.

[9] Midler v. Ford Motor Co., 849 F. 2d 460 (9^th Cir. 1988); Waits v. Frito-Lay Inc., 978 F. 2d 1093 (9^th Cir. 1992), Romantics v. Activision Pub., Inc., 574 F. Supp. 2d 758 ((E.D. Mich. 2008);

[10] See NY Civ. Rights Law 50; Walkowicz v. American Girl Brands, LLC, 2021 WL 510729 (W. D. Wisc. February 23, 2021).

[11] In a not-for-publication opinion, one court to consider the issue rejected the right of publicity claim on copyright preemption grounds. Notorious B.I.G., LLC v. Yes. Snowboards, Case LA CV:19-cv-01946-JAK-KS, Dkt. No 211 p. 6 fn. 3 (C.D. Cal. June 3, 2022).

[12]  See Andersen v. Stability AI Ltd. et al., Case No. 3:23-cv-00201-WHO (2023); “Court Appears likely to Dismiss AI Class Action Lawsuit by Artists,” https://www.artnews.com/art-news/news/ai-class-action-lawsuit-dismissal-hearing-stabilityai-midjourney-deviantart-1234675071/.

[13] Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F. 2d 866 (2d Cir. 1953).

[14] York-Onassis v. Christian Dior New York, Inc., 472 N.Y.S. 2d 254 (Sup Ct 1984); Allen v. Men’s World Outlet, Inc., 679 F. Supp. 380 (1988)

[15] Midler v. Ford Motor Co., 849 F. 2d 460 (9^th Cir. 1988); Waits v. Frito-Lay Inc., 978 F. 2d 1093 (9^th Cir. 1992), Romantics v. Activision Pub., Inc., 574 F. Supp. 2d 758 ((E.D. Mich. 2008);

[16] White v. Samsung Electronics America, Inc., 971 F. 2d 1395 (9^th Cir. 1992); Wendt v. Host Intern., Inc. 125 F. 3d 806 (9^th Cir. 1997).

[17] Montana v. San Jose Mercury News, 34 Cal. App. 4^th 790 (1995); Browne v. McCain, 611 F. Supp. 2d 1062 (C.D. Cal. 2009).

[18] Cf. Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F. 2d 866 (2d Cir. 1953) (creating the right of publicity); Giofriddo v. Major League Baseball, 94 Cal. App. 4^th 400 First District 2002) (use of retired players’ names, voices, photographs etc. on websites and game day programs fully protected noncommercial speech); Malony v. T3 Media, 94 F.3d 1004 (9^th Cir. 2017) (right of publicity claim arising out of use of NCAA athletes’ images preempted by copyright law).

[19]  Woods v. Franklin Mint, 1997 WL 33306646 (C.D. Cal. July 3, 1997):

[20] Notorious B.I.G. LLC v. Yes. Snowboards, et al, Case No. LA CV19-01946 JAK (KSx), Dkt. No. 211, p.6 and n. 3 (C.D. Cal. June 3, 2022)

[21] Mark S. Lee, Entertainment and Intellectual Property Law §17:10-23 (Thomson Reuters 2023).

[22] See Zacchini v. Scripps-Howard Broadcasting, Co., 433 US 562, 576 (1977) (showing a human cannon ball’s “entire act” on the evening news violated Ohio right of publicity law and not protected speech); Estate of Elvis Presley v. Russen, 513 F. Supp 1339 (D.N.J. 1981) (unauthorized Elvis Presley tribute show violated the Presley Estate’s rights of publicity under New Jersey law); Sheffield Ent. Inc. v. Main Event, Inc., 02 CV 3927 (C.D. Cal. Dec. 23, 2003) (unauthorized Frank Sinatra tribute show at the Venetian Hotel in Las Vegas violated Sinatra family’s rights, but only because Nevada right of publicity law did not apply); Apple Corps.  Ltd. v. A.D.P.R., Inc., 843 F. Supp. 342 (M.D. Tenn. 1993) (advertising for unauthorized Beatles’ tribute show violated their rights of publicity).

[23]De Havilland v. FX Networks, LLC., 21 Cal. App. 5^th 848 (2nd. Dist. 2018).

[24] See New Yor Civ. Rights. Law §50.

[25] Doe v. TCI Cablevision, 110 S.W. 3d. 363 (Mo. 2003).

[26] See generally,  Mark S. Lee, Entertainment and Intellectual Property Law §13:35-41 (Thomson Reuters 2023).

[27] See, e.g., Cal Civ, Code §44 to 46.

[28]  Mark S. Lee, Entertainment and Intellectual Property Law §13:41 and cases cited therein.

[29] New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Mark S. Lee, Entertainment and Intellectual Property Law §13:36 (Thomson Reuters 2023).

[30] See “Google and YouTube are trying to have it both ways with AI and copyright,” https://www.theverge.com/2023/8/22/23841822/google-youtube-ai-copyright-umg-scraping-universal.

[31]See https://ipwatchdog.com/2023/07/13/senate-ip-subcommittee-mulls-federal-right-publicity-ai-copyright-hearing/id=163469/.

[32] See Request for Action by the INTA Board of Directors, Federal Right of Publicity, March 3, 1998; American Bar Association Committee No. 201, Trademark Registration: Discussion Concerning Proposed Federal Right of Publicity Act (June 2001).

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Working at the intersection of intellectual property and entertainment, Mark Lee advises celebrities and celebrity estates, studios, and high-tech companies in copyright, trademark, and right of publicity matters. Read more here.