Artificial Intelligence and the Expansion of Rights of Publicity
In response to an uptick in abusive content created using AI, states such as Tennessee have enacted legislation designed to protect rights of publicity, benefiting both celebrities and the general public.
Attribution
Blue and Red Light From Computer by Rahul Pandit on Pexels
The term rights of publicity refers to a sector of intellectual property law that protects a person’s name, image, and likeness (now famously known as “NIL” thanks to the NCAA) from unauthorized use. Though the First Amendment allows for commentating and copying to a certain extent, that extent has historically been limited under a theory of privacy rights. The law recognizes the commercial value of personal brands, as well as the idea that people must be able to control their brand and protect its integrity.
Frustratingly, the law in relation to rights of publicity is not uniform. In fact, it has always been a nebulous thing: despite a 2019 attempt to codify into federal law the illegality of using AI to impersonate, rights of publicity remain a matter of state law, and diverge greatly across the country. In some states, such as New York, California, and Florida, rights of publicity are protected by statute. In others, the law is less evolved and common law prevails, meaning rights of publicity and NIL disputes are decided in accordance with previous related decisions. Further, where some states have determined that rights of publicity terminate with death, others protect it indefinitely or for an extended period of time after death, perhaps mirroring copyright law.
Despite differences in approach, 40 out of 50 states have introduced bills strengthening their existing bodies of law surrounding publicity rights since 2019. This comes as a response to deepfakes and their proliferation on social networking sites. Though artificial intelligence has had an untold number of positive effects, it also has the potential to deceive and malign. In the digital age, “deepfakes” or other forms of AI-generated, synthetic media are often completely indistinguishable from something real. The trend towards curtailing AI represents an increasing awareness among lawmakers and lawyers that rights of publicity can be easily co-opted with new technologies; an old problem has been exacerbated, and requires more and newer solutions.
Arguably, one prolific celebrity has led to this increased awareness and the larger growth of IP law: Taylor Swift. Since 2019, Swift has become embroiled in multiple cases in which AI-generated material infringed on her personal brand. In one case, an AI-generated video arose in which Swift appeared to be pedaling the products of luxury cookware brand Le Creuset. In another more serious case, fake sexually explicit footage featuring Swift was created using AI, causing journalists to question how the law will account for dark usages of AI going forward.
In legal terms, a right of publicity claim requires two main elements: that the plaintiff has a valid right of publicity, and that they can prove the defendant has infringed on that right and caused injury to the plaintiff, be it an economic injury or injury to their privacy and dignity. In either case, based on the direction states are headed in, Swift and the plethora of other celebrities impacted by deepfakes should be able to recover under the law.
Though protecting the general public is an aim of the legal minds contending with the AI issue, it would seem that celebrities’ rights are the real drive behind new state laws. So much so that Tennessee’s new groundbreaking right of publicity law is entitled the “ELVIS” Act, an acronym standing for “Ensuring Likeness Voice and Image Security” and an eponymous reference to the famous singer-songwriter. The ELVIS Act took effect on July 1st, 2024, and introduces powerful new language that denounces “simulation” and “audiovisual work” infringing on an individual’s brand, imposing harsh penalties on bad faith imitation. Though existing right of publicity protections are not yet sufficient to handle deepfakes, Tennessee’s ELVIS Act sets a strong precedent protecting publicity rights from the unique challenge AI presents.