Although one wouldn’t typically look to the Federal Election Commission as a leader in setting regulations about intellectual property, the threat of deep fakes generated by artificial intelligence spurred recent action to prohibit the use of such images in the 2024 elections.[1] The urgency is obvious: peoples’ ability to use AI to create fake images has evolved much faster than the technology to detect it or the ability of regulators to manage it.[2] These concerns are not limited to politics: players in the music industry have been negotiating around the use of generative AI to create music that mimics established recording artists,[3] and lawsuits have already surfaced over deep-fake technology across the entertainment industry.[4] While there is no consensus on how this will affect these industries, or brands in general, Congress has recently taken more urgent actions as well, including the Senate subcommittee on Intellectual Property holding its second hearing in two months on the intersection of AI and the right of publicity.[5]
A Patchwork of State Laws Creates Uncertainty on How Artificial Intelligence May Infringe Upon a Person’s Right to Publicity
The right of publicity is generally understood as the right to exploit the commercial value of a person’s identity and to prevent others from doing so without consent.[6] But what the right protects, how it is protected, and for how long, remains a patchwork of different approaches because the right of publicity in the United States is primarily governed by state laws. Twenty-five states have statutes protecting the right, and about thirty-eight states protect the right in some fashion.[7] But the details are often messy and the legal standards are inconsistent. For example, the duration of protection after death varies widely; while Tennessee protects the post-mortem right of publicity for 10 years,[8] California protects it for 70.[9]
The rationale for and scope of the rule may also be different in different states.[10] In some states—particularly those with common law rather than statutory approaches to publicity rights—it emerged as a privacy protection, strongly influenced by Justice Louis Brandeis and Samuel Warren’s seminal 1890 article, The Right to Privacy.[11] In other states, the justification is economic.[12] And the justification might change over time even within a single jurisdiction. New York passed the first statute protecting the right of publicity in 1903, but it wasn’t until Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.[13] that the state explicitly recognized the right to publicity as primarily an economic rule that protects property rights.[14]
Is the Time Right for Federal Intervention?
In the face of new AI technology, and the societal risks posed by its misuse, relying on inconsistent state laws feels antiquated and inadequate. New technologies make deep fakes easier to make and more convincing.[15] Further, pursuing malicious actors through various state court systems will be costly and time intensive, and will likely produce inconsistent outcomes. On the other hand, given the infancy of AI technology, regulators and lawmakers may want to see how the technology evolves, and how industries self-regulate, before stepping in. However, as the current election cycle makes clear, there may not be time to waste. Campaigns have already used AI in one instance to generate a barren world to reflect the future under one candidate, where another candidate has gone as far as to generate false images of speeches and interactions between individuals that never happened. The result was a sea change within the FEC, which previously rejected a petition to regulate the use of deep fakes to a unanimous vote to move the petition to public comment. Thus, while this isn’t the first time that a federal right of publicity has been suggested,[16] the growing potential for confusion and harm to publicity rights caused by AI technology may require uniform action from Congress, which will likely generate support from individuals seeking to protect their intellectual property.
Even then, the difficulty will be in defining what that right would look like. As courts have noted, “There is an inherent tension between the right of publicity and the right of freedom of expression under the First Amendment.”[17] Courts have struggled with this issue for quite some time, and until recently applied the “transformative use test,” where they “focus[ed] on whether the work sufficiently transforms the celebrity’s identity or likeness…”[18] Other courts have applied the “Rogers test” in this context, asking whether use of the likeness involved “expressive conduct.”[19] The recent Supreme Court decision in Jack Daniel’s Properties, Inc. v. VIP Products LLC,[20] however, may provide guidance on how a Court may balance the need for free expression under the First Amendment against protection of one’s right to publicity, noting that regardless of the threshold test used to examine a particular issue a court must still balance the expression with protecting the public from deception.[21]
Thus, while a pathway exists to create a possible balance between a federal right to protect privacy or commercial interests against the right of free expression, the ultimate purpose between those two interests may greatly limit the scope of the protection. If the legislation seeks to primarily protect privacy interests, then the public right to examine and comment on matters of general concern might overcome any personal rights in publicity. However, if the right is understood as a commercial or property right, then it’s more likely that courts will find that people have the right to choose how to exploit their own image.
What Now?
For now, brand owners and those looking to protect their own name, likeness and image (or those of deceased celebrities) must live with the ambiguity and patchwork of various court interpretations of the inconsistent scope of protection of intellectual property rights under state laws. Further, with the pace of AI technology and the different views of many stakeholders, it is unlikely that any discernable consensus regarding a federal right of publicity will emerge any time soon. In the meantime, the guideposts discussed above provide some path to protection that, properly navigated, may allow a prediction to the future of such protection.
