News & Commentary – Rothman's Roadmap to the Right of Publicity https://rightofpublicityroadmap.com The comprehensive go-to website on the right of publicity. Site provides breaking news, expert commentary, and 50-state survey on the right of publicity from the nation’s leading expert. Mon, 18 Mar 2024 17:51:36 +0000 en-US hourly 1 https://wordpress.org/?v=6.4.3 Tennessee Legislature Sends Right of Publicity Bill to Governor’s Desk https://rightofpublicityroadmap.com/news_commentary/tennessee-legislature-sends-right-of-publicity-bill-to-governors-desk/ Mon, 18 Mar 2024 17:51:36 +0000 https://rightofpublicityroadmap.com/?post_type=news_commentary&p=851 Tennessee’s right of publicity law has long been driven by the ghost of Elvis, and is now likely to replace its current statue with the almost inevitable passage of the appropriately titled ELVIS Act (the Ensuring Likeness, Voice, and Image Security Act of 2024) (HB 2091/SB 2096). Last week the bill was sent to the Governor for signature, after passing both the Tennessee House and Senate in unanimous votes. Governor Bill Lee is likely to sign the legislation as he expressed his support for the bill when it was introduced in January.

The bill was fast-tracked in light of increasing attention to concerns over artificial intelligence (AI) technology, particularly in the recording industry. Notably, Tennessee’s existing right of publicity statute does not include “voice,” but instead only extends claims to uses of a person’s “name, photograph, or likeness.” There remains an open question of whether Tennessee still has a common law right of publicity, which would address voice claims even if the statute were read not to do so. This bill seeks to address the omission of voice, but greatly expands the statute in other ways.

The bill is intended to entirely replace the existing Personal Rights Protection Act of 1984,  Tenn. Code. Ann. § 74-25-1101 et seq, which was originally passed largely to extend Elvis Presley’s publicity rights into the afterlife after several courts had suggested that his estate would have to rely solely on copyright, trademark, and false endorsement laws because Tennessee did not recognize a postmortem right of publicity/appropriation tort.

The ELVIS Act would significantly amend and broaden the existing statutory right of publicity law in Tennessee. I have created a redline version of the current statute to highlight the proposed changes which can be accessed here: Rothman Redline .  I summarize below the key aspects of the changes.

Voice: First, the ELVIS Act would add explicit protections against unauthorized uses of a person’s voice.  The proposed bill adds protections for voice throughout the existing statute. This is a useful and uncontroversial clarification/extension of publicity protections in the state. It is surprising that Tennessee, a major player in the recording industry, did not include voice in its original 1984 legislation, especially given that Elvis’s death was its main impetus.  It is high time this oversight was addressed. I do, however, note, as I did in recent responses to Congressional questions, that Tennessee’s common law likely extended such protections, and the statute could have been expansively interpreted to protect voice-based claims.     

The other changes to the law, however, are much more significant than the addition of voice-based claims. They greatly expand the sweep of Tennessee’s statutory publicity protections, and greatly reduce the exemptions from liability at the same time. I highlight some (but not all) of these major changes.

Broad Scope: The Personal Rights Protection Act of 1984 only barred uses “for purpose of advertising” and potentially uses on merchandise or in fundraising. Such a narrow statute would not cover AI-generated performances, it therefore is not surprising that the law broadens out the basis for liability. I note that to the extent Tennessee’s common law remains in place, which the statute suggests, liability was already broader than the statute.

Of particular relevance for AI-based concerns, the bill would add civil liability if a person “publishes, performs, distributes, transmits, or otherwise makes available to the public an individual’s voice or likeness.”  This provision does not limit liability based on context or to performances so seems to broadly sweep in uses of a person’s name, photograph, likeness, or voice in news reporting, as well as documentaries, films, and books.  Liability does require “knowledge that use of the voice or likeness was not authorized.”

The bill would also extend liability to technology companies and other individuals by creating a civil action if a “person distributes, transmits, or otherwise makes available an algorithm, software, tool, or other technology, service, or device, the primary purpose [of which] is the production of a particular, identifiable individual’s photograph, voice, or likeness” with knowledge that such a use is unauthorized.

This provision is likely to sweep in not only technology companies, journalists, and other traditional content creators, but also ordinary people using online tools and sharing images or recordings (or simply “making them available”).  The requirement of knowledge may mitigate this extreme result, but it is too early to know whether a presumption of knowledge will be imputed in some contexts.

Reduced Exemptions: The current version of Tennessee’s right of publicity statute excludes as “fair uses” any use of a person’s name or likeness “in connection with any news, public affairs, or sports broadcast or account.” The proposed bill sweeps in much more speech then the current law, as described above, and also claws back these exemptions and those which the bill adds. 

The bill says all fair uses and exemptions are contingent and only fair “to the extent such use is protected by the First Amendment.” The bill does add additional exemptions (other than uses in news and sports), but because there is this initial caveat, their scope will likely remain unclear for a long time to come as courts try to figure out whether the First Amendment requires these exemptions. The potential added defenses include uses “[f]or purposes of comment, criticism, scholarship, satire, or parody.” And, of particular import to the film industry, an added exemption for “[a] representation of the individual as the individual’s self in an audiovisual work” unless the work “is intended to create, and does create, the false impression that the work is an authentic recording in which the individual participated.” This last “exemption” appears directed at being able to depict real people in movies and television shows when played either by actors or perhaps also those that use previously recorded clips. Other “exemptions” include those for “fleeting or incidental” uses or advertisements for works that otherwise fall into the exemptions.

Even the exemption for intermediary distribution is pared back in this bill so that owners and employees of media, including “newspapers, magazines, radio and television stations, billboards, and transit ads,” can be liable if they “reasonably should have known” the uses were unauthorized. The prior version required a higher standard of actual knowledge.

The focus on performance rights is also going to create conflicts with copyright law and will make copyright preemption an important and useful defense in instances of  uses of copyrighted works.

“Individual” v. “Person” and Recording Contracts. The proposed bill has a specific subsection that allows a “person”—read as record label—who has an “exclusive personal services” contract or “exclusive license to distribute sound recordings” for a particular “individual” to bring claims under the statute. The bill also fixes a potential statutory drafting error that could have excluded individuals from enforcing their own rights because the definition of person did not include “individual.” I am not aware of any cases raising this problem, but it still seems like a good fix.

Still a Transferability Morass. The revisions do not address the prior language suggesting that the rights are “freely assignable and licensable,” even while the person is alive. This raises the danger, as I have addressed at length elsewhere, that a person’s rights to their own name, likeness, and voice could be stripped away from them and owned by others. See Jennifer E. Rothman, The Inalienable Right of Publicity, 101 Georgetown L.J. 185 (2012).

Notably, however, the other proposed amendments to the statute seem to limit this danger by requiring that the authorization that determines liability must come from the “individual” themselves, what I dub the identity-holder, at least while they are alive and not from any other persons who might hold assignments or licenses. The statute is unclear about this but could be read as indicating that assignments are not actually possible inter vivos and even licenses will not extend rights to authorize uses without additional approval by the individual, other than in the context of recording contracts. These new amendments could add to the identity thicket, that I have documented, by setting up an additional layer of uncertain conflicts between identity-holders and possible publicity-holders or licensees. See Jennifer E. Rothman, Navigating the Identity Thicket, 135 Harvard L. Rev. 1271 (2022).

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This bill is likely to become law with an effective date of July 1, 2024. This will be just one of the many changes and additions to state right of publicity laws following in the wake of concerns over AI. The sheer number of state bills being considered makes it difficult to cover them all and challenging for each state to fully vet them. This frenzy of state laws will exacerbate the identity thicket that I have written about and may lend greater fuel to support a preemptive federal law in this area.

 

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House Subcommittee Sends Follow-Up Questions After AI Hearing https://rightofpublicityroadmap.com/news_commentary/house-subcommittee-sends-follow-up-questions-after-ai-hearing/ Tue, 12 Mar 2024 21:16:27 +0000 https://rightofpublicityroadmap.com/?post_type=news_commentary&p=845 After the February 2nd House hearing about AI and how best to address unauthorized use of a person’s voice and likeness at the federal level, two members of the House Subcommittee on Courts, Intellectual Property, and the Internet sent me (Prof. Rothman) additional written questions to answer for the record.

Representative Issa’s questions focused on potential constitutional challenges to right of publicity laws, whether there was a need for federal legislation, and how to address freedom of contract concerns.

Click here to see my Responses to Rep. Issa.

Representative Dean’s questions focused on how to address deepfakes, and online impersonation given the variation across state publicity laws with regard to requirements of commercial use, the absence of explicit inclusion of voice protection in a few states, and the “shield[ing]” of platforms from liability given Section 230 of the Communications Decency Act Section 230.

Click here to see my Responses to Rep. Dean.

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House Hearing on AI Takes Seriously the Dangers of Transferring Rights to a Person’s Voice and Likeness https://rightofpublicityroadmap.com/news_commentary/house-hearing-on-ai-takes-seriously-the-dangers-of-transferring-rights-to-a-persons-voice-and-likeness/ Tue, 06 Feb 2024 00:29:58 +0000 https://rightofpublicityroadmap.com/?post_type=news_commentary&p=841 Last Friday, February 2nd, the House Subcommittee on Courts, Intellectual Property, and the Internet considered what, if anything, to do about AI and the unauthorized use of a person’s voice and likeness.  The hearing was held in Los Angeles to coincide with Grammys weekend. The hearing focused in part on the recently proposed No AI FRAUD Act, which while admirably trying to amplify federal protection against unauthorized AI performances, has some concerning provisions.  One of these is that the proposed Act would allow others to own another’s person’s voice and likeness forever. Any future revisions to the bill should also consider some of the concerns raised in my earlier post on the Act, as well as in my written testimony, including the breadth of liability and its alignment with the First Amendment.

I testified at the hearing, along with (now) Grammy-winner Lainey Wilson, Harvey Mason Jr., the President and CEO of the Recording Academy, and Christopher Mohr, the President of the Software and Information Industry Association.

The live testimony is available online, along with each of our written testimony.  My written testimony focused on three primary points:

First,  that although the capabilities of today’s consumer-accessible AI are new, the problem of using a person’s performance, voice, or likeness without permission is longstanding. We have many laws already on the books that address such unauthorized uses regardless of the technology employed to do so. Accordingly, any federal legislation in this area must improve the current state of affairs and not create or exacerbate problems produced either by AI or unauthorized uses of a person’s identity.

Second, that any federal right to a person’s voice or likeness must not be transferable away from that person. Allowing such transfers violates our most sacred and fundamental rights and thwarts the expressed goals of Congress to protect the livelihood of performers, the dignity of ordinary people, and the ability to distinguish accurate images and sounds from those which are deceptive creations of highly sophisticated AI. Finally, I suggest in the written document some ways in which federal legislation in the area of the right of publicity could be helpful.

My live testimony and the questioning during the almost two-hour hearing focused on concerns over transferability. I gave the hypothetical example of a world in which Taylor Swift’s first record label obtained rights in perpetuity to young Swift’s voice and likeness. The label could then replicate Swift’s voice, over and over in new songs that she never wrote, and have AI-renditions of her perform and endorse the songs in videos, and even have holograms perform them on tour. In fact, the label would be able to sue Swift herself for violating her own right of publicity if she used her voice and likeness to write and record new songs and publicly perform them. This is the topsy-turvy world that both of the current versions of the No AI FRAUD and NO FAKES Act would create. This does not serve the interests of current and future recording artists, nor of the public more broadly. 

Making publicity rights transferable poses a particular risk to student athletes, children, actors, recordings artists, and models. Such transferability also threatens ordinary people who may unwittingly sign over those rights as part of online terms-of-service.

In answer to one question about these concerns, Ms. Wilson noted that when she started out, she would not have had the bargaining power to retain rights to her own voice or likeness. The members of the subcommittee, including two co-sponsors, seemed interested in working to improve the bill to prevent such a chilling prospect. Although Ms. Wilson spoke in favor of the No AI Fraud Act, she repeatedly stated she was not a lawyer, and as the hearing proceeded she seemed more aligned with the concerns that I raised.

Allowing transferability harms not only the person who loses control of their own identity, but all of us. Owners or licensees of another’s identity rights could generate performances by that person forever, making them say and do things they never did. This poses a broad threat to society by undermining trust in authentic communication and seeding misinformation.

Accordingly, any federal rights to a person’s identity must not be transferable, and there must be significant limits on licensing. Without such limits, these proposed laws will exacerbate rather than combat deception and will fail to protect our voices and likenesses.

The hearing left me optimistic that the subcommittee wants to work on many different methods to address the problems of AI, including better enforcement of existing laws, and working with platforms to improve detection and removal of infringing materials. Committee members also seemed interested in revising the two circulated AI & performance bills so that future versions do not strip each of us of our rights to our own voices and likenesses.

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House’s Draft AI Bill Risks Loss of Control over Our Own Voices and Likenesses https://rightofpublicityroadmap.com/news_commentary/houses-draft-ai-bill-risks-loss-of-control-over-our-own-voices-and-likenesses/ Tue, 23 Jan 2024 18:44:41 +0000 https://rightofpublicityroadmap.com/?post_type=news_commentary&p=831 ***UPDATED TO REFLECT INTRODUCTION TO CONGRESS

On January 9, 2024, Representative Maria Salazar circulated a draft of a bill to address voice and likeness rights in the context of AI. The bill is titled “No Artificial Intelligence Fake Replicas and Unauthorized Duplications Act of 2024,” shorthanded as the “No AI FRAUD Act.” Unfortunately, despite its good intentions, the draft bill would make fake replicas more, rather than less, likely.  Since I first posted this, the bill was introduced into Congress as H.R. 6943 with a bipartisan set of seven co-sponsors.

The bill like the Senate’s discussion draft of its No FAKES Act and associated one-pager highlights the threats that “recent advancements in artificial intelligence (AI) technology” pose to our ability to protect against unauthorized uses of our voices and likenesses.  The findings section of the draft highlights the AI-generated “Heart on My Sleeve” song which initially generated a buzz as a new joint venture by hit recording artists Drake and The Weeknd, when it was not.  The draft notes other examples of recording artists’ voices being used in unauthorized new songs. The Findings section of the draft also points to the dental plan ad that used an unauthorized image and seeming performance by actor Tom Hanks. It additionally notes the use of this technology to create “false, nonconsensual intimate images” of high school girls in New Jersey and elsewhere.  As I have noted elsewhere each of these acts, likely violates already existing state right of publicity laws and in the context of the “Heart on My Sleeve” and the Tom Hanks ad also violate federal and state trademark and unfair competition laws.

This proposed House bill would create a federal “property” right to a person’s likeness and voice, regardless of whether the person is dead or alive. A person’s voice is defined broadly as including a person’s “actual voice” or a “simulation” that is “readily identifiable from the sound of the voice or simulation of the voice, or from other information displayed in connection therewith.”  Similarly, a person’s “likeness” includes an “actual or simulated image or likeness of an individual . . . that is readily identifiable as the individual by virtue of the individual’s face, likeness, or other distinguishing characteristic, or from other information displayed in connection with the likeness.”

Violation. The law would be violated when “any person or entity who, in any manner affecting interstate or foreign commerce . . ., and without consent of the individual holding the voice or likeness rights affected thereby” does one of the following things:

  1. “distributes, transmits, or makes available to the public a personalized cloning service”—such a service is defined as “an algorithm, software, tool, or other technology, service, or device the primary purpose or function of which is to produce one or more digital voice replicas or digital depictions of particular, identified individuals.”
  2. “publishes, performs, transmits, or otherwise makes available to the public a digital voice replica or digital depiction with knowledge that . . .it was not authorized” by the party who holds those rights
  3. “materially contributes to, directs, or otherwise facilitates” any of the above conduct

The bill provides for a $50,000 statutory damage for cloning services or recovery of actual damages and attributable profits. The bill provides for a $5,000 statutory damage for digital depictions and digital voice replicas or recovery of actual damages and attributable profits. It also provides for punitive damages and reasonable attorneys’ fees. It seems like attorneys’ fees are only awardable to “injured” parties so prevailing defendants appear not able to recover.

The bill restricts liability for “negligible” harm—though it is not clear what would qualify, if anything, in that category. The bill emphasizes that harm includes “financial or physical injury” or simply “elevated risk” of either, “severe emotional distress,” and “deception of the public, a court, or tribunal.”  Given that third-parties under the terms of the bill can own another’s voice and likeness and do whatever they want with them, it seems like the express harm to be remedied by the bill is substantially caused by the bill itself which allows third-party owners of a person’s voice or likeness to deceive the public into thinking the person actually performed or specifically authorized the digital performance.

The bill also suggests that “any digital depiction or digital voice replica which includes child sexual abuse material, is sexually explicit, or includes intimate images” is per se harmful.  I note that the term “intimate images” is not defined in the bill.

Confusingly, the bill in C(2)(E) appears to allow both the underlying identity-holder and an owner (or licensee) of their rights to bring suit. This sets up a potential conflict where—if the transferability provision discussed below is allowed—an identity-holder and the owner of their voice and likeness could sue a party authorized to use the person’s voice and likeness by the other or to sue one another. This raises the identity-thicket problem, that I have identified elsewhere to a new level. See Jennifer E. Rothman, Navigating the Identity Thicket, 135 Harvard L. Rev. 1271 (2022).

Like the No FAKES Act—the party whose interests appear to be primarily served by this proposed legislation is the record labels and recording industry, not the performing artists highlighted in the findings.  Subpart C(2)(E) demonstrates this with a special provision that provides that anyone who has an “exclusive personal services” contract with a “recording artist or an exclusive license to distribute sound recordings that capture the individual’s audio performances” can also bring suit.

Transferability. The bill dangerously makes this new federal property right in a person’s likeness and voice “freely transferable,” meaning that a person or entity other than the identity-holder themselves can own that person’s voice and likeness forever and in any context. A chilling and likely unconstitutional prospect that I have repeatedly warned against. See, e.g., Jennifer E. Rothman, The Right of Publicity: Privacy Reimagined for a Public World (Harvard Univ. Press 2018); Jennifer E. Rothman, The Inalienable Right of Publicity, 101 Georgetown L.J. 185 (2012).

The bill limits authorized “digital depiction[s]” or “digital voice replica[s]” to those where a person was represented by counsel or is over the age of 18 unless a court approves the agreement or if a collective bargaining agreement applies.

These are woefully inadequate protections.  First, no one should be able to own another person’s likeness or voice regardless of representation or court review.  Second, this allows unions to authorize third-party ownership of all of their members’ voice and likenesses. Third, given the expense of counsel and the lack of bargaining power and sophistication of many parties, these provisions will do little to stop such transfers. 

Finally, and of great significance to the purported goals sets forth at the outset of the discussion draft, allowing such transfers will make it more likely that unauthorized uses of a person’s voice and likeness will be circulated and that the public will no longer be able to tell when a person actually performed or agreed to any specific use of their voice or likeness.  For example, a record label could get in perpetuity rights to a person’s voice and likeness and simply replicate that person’s voice over and over again, creating new songs that the person never sang or specifically authorized. Record labels might benefit from this, but society as a whole will be much the poorer.

Postmortem Rights. The bill would extend a postmortem period of rights to “executors, heirs, transferees, or devisees” for every single dead person (“regardless of whether the individual has died before [the bill’s] effective date”). The bill provides an initial postmortem period of ten years after death but then is unclear on whether it continues forever thereafter if it doesn’t “terminate.” The postmortem rights can then seemingly terminate if after twelve years (initial ten plus two) there is a showing of no use for “commercial purposes” of the person’s identity by any of the designated individual’s above or if they are all dead.

This is a very odd provision. The focus on commercial use, appears to value and incentivize profiting from and commercializing the dead rather than protecting the grieving process of the survivors or the dignity of the deceased. In fact, given the way estate taxes work this exacerbates the problem of forcing the commercialization of the dead even when the deceased and their families did not want to commercialize them. See, e.g., Jennifer E. Rothman, “Mixed Victory for Jackson Estate in Tax Court” (discussing this issue).

Defenses and Limitations. Like the circulated No FAKES Act in the Senate, this house bill makes clear that a disclaimer revealing that the depiction, voice replica, or cloning service is not authorized is not a defense.

Interestingly, the bill suggests that the First Amendment is a defense to this proposed cause of action—which of course it is—but then tries to hem in such a defense by defining how such a defense should be understood in this context. Specifically, the draft proposes a likely unconstitutionally vague and underprotective balancing test in which the “public interest in access to the use shall be balanced against the intellectual property interest in the voice or likeness.” The bill then sets forth a number of factors to consider, including whether the use is “commercial”— a term which it does not define—whether the use is “necessary for and relevant to the primary expressive purpose of the work in which the use appears,” and whether the “use competes with or otherwise adversely affects the value of the work of the owner or licensee of the voice or likeness rights at issue.” 

These are extreme limits on free speech. The First Amendment does not require a showing that a use of a person’s voice or likeness must be “necessary.” And determining what is meant by necessary is a challenging business.  Further, how are courts going to determine the “primary expressive purpose” of using a person’s identity in historical novels, docudramas, biographies, or works of utter fiction that refer to real people in connection with this inquiry of necessity?

Another section on limitations suggests that another relevant consideration is whether the use is “transformative.” This term is not defined and although it has been adopted by some courts in right of publicity cases in the context of First Amendment defenses, it originated in the context of copyright’s fair use defense, and likely has been narrowed in the publicity context as well, after the Supreme Court’s decision in The Andy Warhol Foundation for the Visual Arts v. Goldsmith, 598 U.S. 508 (2023). The bill also suggests that uses are allowed if “constitutionally protected commentary on a matter of public concern.” This version of a limit essentially leads us back to the First Amendment analysis that is quite muddled in the context of right of publicity cases across the federal circuit courts and states. See Robert C. Post & Jennifer E. Rothman, The First Amendment and the Right(s) of Publicity, 130 Yale L. J. 86 (2020).

No Preemption. Further exacerbating the identity thicket problem with this legislation, the bill does not preempt state (or federal) laws that also operate in this space suggesting that many parties may be able to claim rights over the same person’s voice and likeness.  Leaving in place longstanding precedents that are working is a good thing, but adding to the muddle of conflicting rights over a person’s identity is not.

Section 230. The bill explicitly qualifies the rights provided as “intellectual property” for purposes of Section 230 meaning that internet service providers will not be immunized from liability for third-party speech on their platforms that violates the bill. The bill still leaves open the question of how to treat state right of publicity laws about which there is a split.

* * *

In sum, this discussion draft is in the early stages and no doubt will go through many iterations and improvements should it proceed. It is essential that in the process, Congress take more seriously (1) the threat posed by transferring a person’s rights to their own voice or likeness to another person or entity; and (2) more clearly identify the objectives of this legislation and limit its scope so as not to make things worse for performers, ordinary people, creators, and the protection of truth and authenticity.

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House Releases Draft Legislation Targeting AI https://rightofpublicityroadmap.com/news_commentary/house-releases-draft-legislation-targeting-ai/ Thu, 11 Jan 2024 16:15:17 +0000 https://rightofpublicityroadmap.com/?post_type=news_commentary&p=824 Earlier this week, Representative Maria Salazar circulated a discussion draft of a bill to provide federal “property rights in likeness and voice” to combat concerns over AI-generated replicas of recording artists’ and actors’ performances. This continues the recent interest in Congress of tackling publicity rights at a federal level in light of ever-improving AI technology. This new draft from the House follows on the heels of the Senate’s circulation in the Fall of a discussion draft of the No Fakes Act. The House draft legislation is titled the “No Artificial Intelligence Fake Replicas and Unauthorized Duplications Act of 2024” or the “No AI FRAUD Act.”  I will provide a more detailed analysis of the bill soon, but in the meantime, it is available here.

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Supreme Court Likely to Uphold Bar on Registering “Trump Too Small” https://rightofpublicityroadmap.com/news_commentary/supreme-court-likely-to-uphold-bar-on-registering-trump-too-small/ Thu, 02 Nov 2023 18:05:09 +0000 https://rightofpublicityroadmap.com/?post_type=news_commentary&p=816 Oral arguments were heard today by the Supreme Court in Vidal v. Elster. This trademark case revolves around the constitutionality of the 15 U.S.C. § 1052(c) bar to registering a mark that “consists of or comprises a name, portrait, or signature identifying a particular living individual except by his written consent.” Based on the oral arguments, the Supreme Court seems likely to reverse the Federal Circuit holding that this bar was unconstitutional.

The Applicant here, Steve Elster, had sought to register “Trump Too Small” for use on t-shirts and other apparel. The application initially had been rejected for violating both this bar and the § 1052(a) bar against “falsely suggesting a connection with a person, living or dead.” Upon review by the Trademark Trial and Appeal Board, this rejection of the application was upheld on the basis of the § 1052(c) bar alone. The Federal Circuit than reversed and held that this bar was a content-based speech restriction that was unconstitutional at least when applied, as it was here, to restrict a mark that commented on a public figure, like former President Trump.

The lawyer for the United States, Malcolm Stewart, Deputy Solicitor General, highlighted that bars to registration do not restrict speech. Elster can sell his shirts with the same message on them without a registered mark. He can also obtain a registration for these exact shirts as long as he chooses a source-identifier that does not contain a reference to another person’s name without permission. Many of the justices seemed to agree that there was no speech restriction at issue in the case. 

The justices, however, still seemed not to agree on how to categorize the federal trademark registration system. Is it a government benefit?  Is it a limited public forum? Neither?  The Court dodged definitively answering those questions in Tam and Brunetti, prior Supreme Court cases on the trademark registration system, and I expect them to do the same here.

The justices also seemed to disagree on what level of scrutiny might apply, and some thought that discussing the level of scrutiny was not a helpful analytical tool here. For example, Justice Kagan asked the Petitioner whether a reasonableness or rationale basis review was appropriate, and how those standards might differ. Justice Gorsuch suggested that analyzing these labels and tests was besides the point here when limits on using others’ names without permission as marks are longstanding. This history is something that I documented in my recent article, Navigating the Identity Thicket, 135 Harv. L. Rev. 1271 (2022).

The justices did not seem concerned that the prohibition exceeded circumstances in which there was confusion over source or sponsorship. As Stewart highlighted in his arguments on behalf of the PTO, there are a number of uses of a person’s name that should not be registered without permission even if the use caused no confusion as to sponsorship. He gave several examples, including the use of a mark referring to the L.A. basketball team, the Lakers, as “Jack Nicholson’s Favorite Team.” This could be accurate but should still not be registered as a mark without Nicholson’s consent. He also noted that disclaimers of any connection with the person should not mitigate the bar to registering marks that incorporate another person’s name without permission because harms still flow to the person whose name is used without permission.

Regardless of the path to get there, the justices seemed to agree that speech is not restricted by this bar to registration, and the determination of whether the bar applies is not viewpoint-based, in contrast to the circumstances in Tam and Brunetti. None of the justices seemed persuaded by Jonathan Taylor’s argument for Elster that the bar was viewpoint-based because individuals are more likely to authorize positive uses of their names than critical ones. The government prohibition does not on its face allow for such discrimination, and Justice Jackson noted several times that there was little to no evidence that the bar was being used in a viewpoint discriminatory fashion by the PTO.

I would place odds on a reversal here and § 1052(c) being held constitutional. 

If the opinion tracks the logic of the justices’ questions, there are a few additional things to note revealed by the argument and likely reversal:

First, there appears to be broad support for recognizing personal marks that identify each of us. Justice Alito suggested during the arguments that “everyone has a quasi-property” or trademark right in “his or her name.” Several justices noted that such rights were longstanding and in service to trademark’s objectives.

Second, the justices continued to suggest support for restrictions on uses of marks even when the uses are not confusing.  This is of particular note for the remand in the recent Jack Daniel’s case decided by the Court.  The defendant may seek to challenge the constitutionality of dilution law, which already faces some serious headwinds. Notably, Justice Alito suggested during argument here that the San Francisco Arts & Athletics case would support a finding of constitutionality here–a case notably that turned on barring use of a mark (“Olympics”) without a showing of likely confusion or dilution. This analytical approach also suggests that the Court will accept the constitutionality of right of publicity laws without regard to confusion, even beyond the performance context of Zacchini.

Finally, several justices agreed with the government about the importance of being able to make statements like “Trump Too Small” and to sell t-shirts with such messages on them. The justices suggested that this was speech protected by the First Amendment. In fact, they expressed concern that allowing Elster to register the slogan as a mark would block others from having equal access to making such comments about Trump. This suggests a recognition of the importance for First Amendment purposes in being able to comment on and refer to real people, even if some money is made in the process.  This line of analysis also highlights why most slogans or sayings like this don’t and should not be understood to function as marks or source-identifiers.

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Comments Submitted to Copyright Office on the Right of Publicity and AI https://rightofpublicityroadmap.com/news_commentary/comments-submitted-to-copyright-office-on-the-right-of-publicity-and-ai/ Fri, 27 Oct 2023 15:04:37 +0000 https://rightofpublicityroadmap.com/?post_type=news_commentary&p=812 In response to the Copyright Office’s Notice of Inquiry and Request for Comments on Artificial Intelligence and Copyright, I submitted comments, particularly focused on the Office’s questions pertaining to the right of publicity and the use of a person’s likeness or performance in the context of generative AI.  These comments sweep more broadly than those I submitted last week in response to the circulated discussion draft of a digital replica bill in the U.S. Senate.

In the comments, I observe that there are four primary ways in which people’s identities can be used in generative AI: (1) images, videos, and sound recordings of real people can be used as training data; (2) people’s names and other identifying data can be used as prompts; (3) outputs of generative AI can include, replicate, or evoke the names, likenesses, voices, and performances of identifiable individuals; (4) people’s identities or performances can be used to promote or market AI platforms. My comments, and the concerns highlighted in Congressional hearings on the issue, focus primarily on the third of these uses, in which generative AI produces outputs that are convincing images, sound recordings, or performances that appear to have been done by known and recognizable individuals.

In my comments, I consider how current laws likely extend claims for these outputs, some opportunities for federal legislation in this area, and some potential pitfalls of such legislation that should be avoided. My complete comments can be accessed here: “Artificial Intelligence, Copyright, and Right of Publicity Comments of Professor Jennifer E. Rothman“.

 

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Draft Digital Replica Bill Risks Living Performers’ Rights over AI-Generated Replacements https://rightofpublicityroadmap.com/news_commentary/draft-digital-replica-bill-risks-living-performers-rights-over-ai-generated-replacements/ Fri, 20 Oct 2023 14:58:20 +0000 https://rightofpublicityroadmap.com/?post_type=news_commentary&p=806 The NO FAKES ACT released as a discussion draft last week proposes establishing a new federal digital replica right that would extend 70 years after a person’s death. The one-pager accompanying the draft highlights that the legislation is driven by concerns that “unauthorized recreations from generative artificial intelligence (AI)” will substitute for performances by the artists themselves. Unfortunately, this laudable goal is undercut by some of the provisions contained within the current working draft.

I appreciate that this is a discussion draft and that the sponsoring Senators are seeking feedback on it. With that in mind, I want to flag my biggest concerns with the current draft and have prepared a more detailed analysis of its provisions in a separate supporting document.

As currently drafted, this legislation would make things worse for living performers by (1) making it easier for them to lose control of their performance rights, (2) incentivizing the use of deceased performers, and (3) creating conflicts with existing state rights that already apply to both living and deceased individuals. I will consider these concerns, revisit the stated (and unstated) objectives of the legislation, and make some recommendations.

Big Picture:

Existing Protection and the Do-No-Harm Principle. It is essential to note that state right of publicity laws already protect against unauthorized digital performances, and state and federal trademark and unfair competition laws restrict many of the possible uses and promotion of computer-generated performances. Copyright law may also limit some of these new audiovisual works. So, the bar to adding a new layer on top of the existing legal structure should be high and should certainly not make anyone worse off than under the status quo.

Dead People Should Not Replace the Living. The legislation proposes adding a new federal right in dead performers (and more broadly in all dead people’s digital replicas). This will further encourage and incentivize a market in digital replicas of the dead that can displace work for the living by substituting newly created performances by famous deceased celebrities. AI poses a monumental threat to employment opportunities for everyone, including actors and singers. The inclusion of a postmortem provision (at least as drafted) exacerbates rather than protects against such a threat.

Increases Likelihood of Performers Losing Control over Future Performances and of Misinformation. Although the proposed legislation ostensibly seeks to protect individual (living) performers from the harms that flow from substitutionary performances made possible by ever-improving AI technology, the current draft leaves performers potentially worse off by empowering record labels, movie studios, managers, agents, and others to control a person’s performance rights, not just in a particular recording or movie but in any future “computer-generated” contexts.  

As written, the legislation sets up a world in which AI-generated performances will be able to be created without any specific involvement or approval of the individuals (beyond some broad unlimited license) nor any required disclosure that they were AI-generated or that those depicted did not agree to the specific performances. AI-generated performances will be able to portray individuals saying, doing, and singing things they never said, did, or sang. This will exacerbate the dangers of misinformation, false endorsements, and deceptive “recordings,” rather than combat them. As Senator Klobuchar and others have so powerfully warned, such deceptive performances pose one of the greatest current threats to democracy and truth. This draft bill seems to shore them up rather than restrict them.

Broad Liability May Ensnare Consumers. The scope of the draft’s liability provision is vast and based on strict liability (or perhaps even liability without voluntary action). Under its current provisions, general consumer users of AI software could be found liable for violating the digital replica right when they use generative AI programs. This should remind us of the recording industry’s lawsuits against individuals during the days of peer-to-peer file-sharing before music streaming took off.

Objectives of the Legislation

Part of the challenge with the current draft is that it has conflicting objectives. Its stated objective is to protect the rights of performers. Its unstated but implicit objective is to protect those who hold copyrights in sound recordings (i.e. the recording industry). These goals are in tension, at least as currently addressed in the draft. If the primary concerns are those of the recording industry, the bill could tackle them more directly and more narrowly. Alternatively, if the primary goal is to protect the interests of performers, the legislation should have different contours and should engage more with state publicity laws.

Protection of Performers? The one-pager released along with the draft legislation highlights the concern over the computer-generation of performances by real people without their permission. The document points to two recent and high-profile examples. The first is the viral AI-generated song “Heart on My Sleeve,” which imitated the voices of Drake and The Weeknd. The song became a hit—until it was removed from various platforms—and the public initially thought it was a real song by the performers. The second example is the recent AI-generated version of Tom Hanks used without authorization in an advertisement for a dental plan.

Combating such creations—especially when the fabricated performances are those of politicians purportedly making public statements—is undoubtedly a compelling goal. But an important point missing from the one-pager is that Tom Hanks, Drake, and the Weeknd are not left adrift by current law. In fact, they each have slam-dunk lawsuits under state right of publicity laws for the two uses described. Federal trademark, unfair competition, and false advertising laws under the Lanham Act and similar state laws would also provide claims. Having a federal law might send an additional signal and make filing in federal court in a preferred jurisdiction easier, but it is not filling a gap in the law. A broader federal right of publicity law could harmonize and clarify state right of publicity laws and exceptions to them—but this legislation does not do this.

One benefit for performers of the proposed legislation is that it explicitly designates the new performance right as “intellectual property” for purposes of Section 230, which would facilitate the removal of unauthorized performances and the ability to obtain damages for them from online platforms. There is currently a circuit split about whether right of publicity claims fall within the immunity provisions of the Communications Decency Act § 230 or instead fall under the IP exception. This matters because if the exception does not apply, it is difficult to get platforms to take down infringing content. However, the Section 230 problem could be addressed more directly by amending § 230, without need to create a new performance right. Such an amendment would provide far greater clarity and protection for performers and others who currently have their likenesses and performances circulated without permission, including in the context of unauthorized circulation of intimate images.

Protection of the Recording Industry

The bill makes more sense when understood to primarily be addressing the concerns of the record labels about AI-generated songs that might substitute for their legitimate releases. This focus is evident in the explicit extension of the digital replica rights to any person or entity that has an “exclusive personal services” contract with “a sound recording artist as a sound recording artist.” In other words, record companies get (and can enforce) rights to performers’ digital replicas, not just the performers themselves. This opens the door for record labels to cheaply create AI-generated performances, including by dead celebrities, and exploit this lucrative option over more costly performances by living humans, as discussed above. There are many ways to address the recording industry’s concerns, but giving record labels and others a federal right to digital replicas of individual people may not be the best way to do so. Styling the protection this way does provide the rhetorical benefit of harnessing the star power of famous performers, but in reality, the draft legislation appears to be a net liability for performers.

The recording industry has some legitimate concerns, especially when newly generated performances are passed off as authentic ones by artists with whom they have exclusive contracts or that unfairly disrupt the release of their sound recordings. The recording industry, however, should not be able to block nondeceptive computer-generated musical tracks that simply emulate the style (but do not replicate the voice) of known performers and do not cause confusion as to a performer’s involvement with the work. Because the recording industry is not certain of how copyright litigation in this area will play out, it is looking for a quicker and more straightforward fix. But this cure may be worse than the disease.

Some Recommendations Going Forward:

Consider Whether this is the Right Fix for the Problem

If the primary focus is not the inadequacy of current law for performers, but instead the challenges posed by Section 230 and concerns about the effectiveness of copyright law to protect the recording industry, the proposed digital replica right may not be the best way to tackle these concerns.

Instead, amending Section 230 to clarify that state right of publicity and appropriation-based claims may proceed against interactive computer services would help both performers and the recording industry, as well as the broader public.

A more targeted sound recording right also could be drafted that expressly focuses on the recording industry’s concerns without jeopardizing performers and their control over future performances.

Limit to Rights for the Living

A bill purportedly seeking to protect the livelihood of performers is not the proper place to create a novel federal right in dead performers who can substitute for living performers for 70 years after their death. This aspect of the proposed bill seems completely at odds with its stated purposes and instead will shore up reanimated replacements for up-and-coming performers. To the extent that the postmortem provision is driven by the recording industry wanting to protect recordings by deceased artists, it can be done in a more limited fashion.

There may be reasons to provide federal postmortem rights, particularly to harmonize state laws in this area, but doing so requires a much deeper dive into why we are doing so, tackling the variety of state laws in the area, and consideration of who should be able to own and profit from these dead performers’ rights. The postmortem provision has little to do with addressing the problems with AI and will primarily enrich companies that own and manage the rights of dead people while doing little to address the concerns of the living.

In addition to incentivizing the replacement of up-and-coming performers with dead celebrities, it will also (as currently drafted) force the commercialization of deceased celebrities even if that is contrary to their wishes or the wishes of their families, because of how such a new IP right would be treated under current estate tax laws.

Better Protect Performers by Restricting Scope and Duration of Licenses and Add Disclosures

If legislation similar to this draft proceeds, the licensing of performance rights should be far more limited so as not be a subterfuge for long-term, perpetual, or global licenses that are akin to transferring all future rights in a person’s performance to others.

Licenses should not exceed seven years, an outer limit we see in the regulation of personal services contracts. Any licenses involving children should expire when they turn 18, should be reviewed by a court, and any income earned should be held in a trust for them.

A license should only authorize a specific performance or set of performances over which a person has control; this should include control over the words and actions of their computer-generated self. This will have the important bonus of protecting against deceptive performances in which a performer played no role. In the absence of such individualized approval, the law should mandate clear and prominent disclosures that the performances in question were not by the individual nor specifically reviewed or approved by the depicted persons.

Clarify Protections for Free Expression

The First Amendment provides latitude for works in the style or genre of others. So, there should not be liability for works merely in the style of a Taylor Swift or Drake song when there is no confusion as to the use of the performers’ voice or participation, and there is no advertising using their names or likenesses. Allowing such computer-generated works furthers the spirit of “foster[ing] art” and “nurtur[ing] originals” that the proposed Act sets out as its objectives. An easy way to fix this concern with the current draft is to limit claims to situations in which the recording actually sounds like the voice of the person. Disclaimers should not be relevant to such an inquiry.

Some of the current exclusions would benefit from greater clarity, especially around the use of real people in fictional works. The current exclusions do not provide sufficient protection to works outside of the traditional film and television model of audiovisual works, including musical works, video games, and interactive computer programs, including those which are educational in nature and part of school curriculum.

Address Conflicts with Potential Plaintiffs, Existing Rights-Holders, and Licensees

The current draft does not address what happens if an individual approves of a computer-generated recording, but a licensee or holder of a personal services contract for sound recordings does not approve of the use. This suggests that a record label could sue the performer themselves for violating the legislation.

The draft states that it leaves state laws in place but does not clarify what happens to existing licensing agreements that already cover the same rights at issue here and that will conflict with this newly created right.

The draft does not address what happens when someone uses computer-based technology to create authorized derivative works on the basis of copyrighted works in which performers agreed to appear.

If the legislation proceeds, future drafts should provide guidance on how these conflicts should be addressed.

I suspect that if this legislation continues there will be many changes to this initial discussion draft, but in the meantime for those who are interested, I have prepared a more detailed summary of the key provisions of the draft legislation, as well as my analysis of them in a separate document that can be accessed here.

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Senate Circulates Draft of Digital Replica Bill https://rightofpublicityroadmap.com/news_commentary/senate-circulates-draft-of-digital-replica-bill/ Thu, 12 Oct 2023 16:05:30 +0000 https://rightofpublicityroadmap.com/?post_type=news_commentary&p=798 A draft of a digital replica bill to address concerns over AI-generated performances and sound recordings has just been made public, along with a related one-pager. This follows in the wake of the Senate’s July hearing on copyright and AI.  I previously submitted comments to the Senate after the hearing in anticipation of such legislation.  The draft has been released by Senators Coons, Blackburn, Klobuchar, and Tillis in a showing of bipartisan support. It is currently titled the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act of 2023.

My initial comments submitted to the Senate did not focus on postmortem rights which are included in this draft legislation and deserve additional thought. I will be reviewing the draft bill in more detail and will share additional thoughts on this proposal soon.

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Submission to Congress in Wake of AI Concerns https://rightofpublicityroadmap.com/news_commentary/submission-to-congress-in-wake-of-ai-concerns/ Mon, 02 Oct 2023 15:02:34 +0000 https://rightofpublicityroadmap.com/?post_type=news_commentary&p=791 In July at a Senate hearing about Artificial Intelligence and Intellectual Property, several Senators and witnesses floated the possibility of adopting a new federal right of publicity or a more limited “digital impersonation” or digital replica law.  In light of these calls and the seriousness with which they are being taken, I prepared a two-pager that I have submitted summarizing some suggestions as Congress takes up this issue. No draft legislation has yet been introduced so these thoughts are preliminary and based on the identified problems raised and discussed at the hearing and shortly thereafter.

The complete submission is available here, and provides some general thoughts on some of the many issues that Congress would need to consider with any such draft legislation, including:

1) Its interplay with existing state right of publicity laws

2) The treatment of ordinary people

3) Limiting the transferability of such a newly-created right

4) First Amendment and Free Speech limits

5) Potential Conflicts with Copyright

6) Intermediary Liability and Section 230

These are only some of the many issues such legislation might raise.  The treatment for deceased individuals, for example, is not something I focus on in this brief two-page summary of issues, but will likely be on the table if things proceed and raises distinct issues than publicity rights for the living.

Other parties have also made submissions about possible legislation following the July hearings, including the Motion Picture Association which filed a statement which highlights First Amendment and copyright limits on such legislation.

The Film Independent and the International Documentary Association also submitted a statement after the hearing expressing concern about the possible legislation and requesting a “carve out for expressive works.”

Although calls for a federal right of publicity have happened before with no specific legislation passed, concerns about the ability of ever-improving AI to produce substitutionary sound recordings and audiovisual performances may push Congress to act this time.

At the same time that Congress may consider draft legislation in this area, we are just beginning to see litigation under state right of publicity laws and federal copyright law involving AI-generated videos and audio works that replicate or imitate real people’s likenesses, performances, and voices.  I suspect that some of these lawsuits will be successful and may alter industry practices separate from any federal legislation on the horizon.

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