In the digital age, stars are created overnight, and business practices have evolved to capture the value of this stardom. Now, the value of these stars is not limited to products or services but, rather, extends to all unique aspects of a person’s identity or “persona” — the public character of an individual that has commercial value, including one’s name, voice, image, likeness, reputation, and other recognizable features that can easily be attributed to an individual. This phenomenon of monetization has created more incentive for public figures to protect their persona while simultaneously creating opportunities for others to appropriate, capture, and manipulate the value of another person’s identity.
The advent of generative artificial intelligence (GAI) software adds new challenges to this existing problem. By scouring and compiling data, generative AI can effortlessly access and replicate existing identities and creative works. A quick search on YouTube will yield tons of AI-generated content, portraying the living and dead alike. While entertaining, these AI creations represent a growing concern over the protection of creative personas while emphasizing the significance of a right of publicity law.
What is Right of Publicity?
The right of publicity (ROP) (a.k.a. personality rights) refers to the legal right of individuals to control the commercial use of their name, image, likeness, or other identifiable aspects of their persona. The right of publicity grants individuals the exclusive right to authorize or prohibit the use of their identity (name, likeness, voice, reputation, etc.) for commercial purposes, such as in advertising, endorsements, merchandising, or other promotional activities. The right of publicity is governed by state law, as there is no federal legislation that regulates or recognizes it. Thus, while some jurisdictions have recognized it as a common law right, others recognize it through statute.
The primary purpose of the right of publicity is to protect the commercial value and integrity of a person’s identity. This right allows individuals to prevent unauthorized use of their identity that could lead to false endorsements, misrepresentations, or infringements on their privacy. There is some variation within the specific scope and limitations of the right of publicity across jurisdictions. For example, California recognizes a publicity right that extends beyond an individual’s lifetime (called a post mortem right) that is also transferable to heirs and third parties, a unique feature available in a minority of states.
It’s worth noting that the right of publicity is distinct from other forms of intellectual property rights such as copyright or trademark. A copyright protects original works of authorship, while trademarks protect distinctive signs or fonts used to identify goods or services. The right of publicity focuses specifically on the commercial use of an individual’s identity. Despite differences, like a copyright or trademark, the right of publicity aims to protect and internalize creativity by protecting a uniquely creative object: one’s “persona.”
What is generative AI?
Technology such as generative artificial intelligence (GAI) has made it much easier to appropriate an individual’s identity. Generative AI is a branch of artificial intelligence that focuses on creating models and algorithms capable of generating new and original content that closely resemble human-generated content. GAI uses networks to identify the patterns and structures within existing data to generate new and original content, enabling users to quickly generate new content based on a variety of inputs.
GAI models access large amounts of unlabeled data and use those to create what are called “foundation models.” A foundation model is a machine learning model trained on a major quantity of data. Using a brief input from a user, a foundation model can generate outputs such as text, images, sounds, animation, 3D models, and other types of data. Examples include GPT-3, which is the foundation model underlying ChatGPT. The nature of GAI allows users to replicate and manipulate identifiable characteristics of an individual, which can harm the commercial value of an individual’s persona and potentially create privacy issues.
The relevance of the right of publicity and generative AI.
Despite GAI’s novelty and a lack of current case law specific to it, legal precedent provides insight on how courts will likely approach the issue of right of publicity and generative AI. For example, in Zacchini v. Scripps-Howard Broadcasting Co., the Supreme Court found that a performer whose live performance was broadcast on television without his consent had the right to sue the reporter under Ohio’s right of publicity law. Further, the Ninth Circuit Court of Appeals has ruled that protection against the use of unauthorized likenesses can extend to use of “look-alikes” or sound-alikes in commercials, in the cases White v. Samsung and Midler v. Ford.
The greatest effect that AI will likely have on the right of publicity is to increase its enforcement. GAI effectively democratizes the ability to use characteristics of someone’s persona, significantly lowering the cost of appropriation. This will likely translate to more violations by appropriators, and more enforcement by rights holders. Despite this, most of these disagreements will likely never reach court, as the threat of a lawsuit will likely act as sufficient deterrent.
Conversely, GAI works have the potential to enhance or devalue one’s work and public reputation. To explain, because AI can create near perfect replications of one’s persona with ease, with the correct training an AI model could serve as a near perfect substitute for an author’s persona. A sufficiently well-trained GAI could produce content that would be difficult for consumers to differentiate from official appearances or endorsements and AI-generated images. In this case, right of publicity laws provide protection for the artist.
Generative AI presents both promise and challenge to the right of publicity. On one hand, it may increase artists’ earning potential by allowing them to license or contract pieces of their persona. On the other hand, it may decrease and even damage a creative’s earning potential through misappropriation. All things considered, appropriate tools exist to ensure that generative AI systems are compliant with existing right of publicity law. As long as the focus remains on the infringement of the person’s right of publicity and not on the method or manner of content creation, the fact that content was created using AI should not stop judges from enforcing the right of publicity.
