Submission to Congress in Wake of AI Concerns

By Jennifer E. Rothman
September 29, 2023

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.