Tag: First Amendment
California Considers a Digital Replica Law for the Dead
Joining the frenzy of states trying to address concerns over artificial intelligence (AI) and particularly concerns expressed by the recording industry, Assembly Member Rebecca Bauer-Kahan introduced a right of publicity bill in the California legislature, AB 1836, that would add a digital replica provision to California's postmortem right of publicity statute, Cal. Civ. Code §...
Tennessee Governor Signs ELVIS Act, Greatly Expanding State’s Publicity Statute
Yesterday, Governor Bill Lee signed into law the ELVIS Act which replaces the prior right of publicity statute in Tennessee. It goes into effect on July 1st. I analyzed the new law in detail earlier this week. The law uncontroversially adds voice to the enumerated protections but also greatly expands the scope of liability and...
Tennessee Legislature Sends Right of Publicity Bill to Governor’s Desk
Tennessee’s right of publicity law has long been driven by the ghost of Elvis, and is now likely to replace its current statute 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...
House Subcommittee Sends Follow-Up Questions After AI Hearing
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...
Supreme Court Likely to Uphold Bar on Registering “Trump Too Small”
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...
Draft Digital Replica Bill Risks Living Performers’ Rights over AI-Generated Replacements
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...
Senate Circulates Draft of Digital Replica Bill
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. ...
Supreme Court Sides with Jack Daniel’s in Trademark Case
Today's Supreme Court decision in Jack Daniel’s Properties, Inc. v. VIP Products, 599 U.S. __ (2023), will influence not only trademark cases to come, but also false endorsement and right of publicity cases. As you may already know, the case involved a dog toy that mocked the name and trade dress of Jack Daniel's iconic...
Cardi B Wins Jury Verdict against Tattooed Plaintiff
On October 21st, in Brophy v. Almanzar, a jury sided with recording artist Cardi B (aka Belcalis Alamanzar) and rejected a lawsuit brought against her by Kevin Michael Brophy. The dispute arose out of the use of Brophy’s tattoo as a starting point for the cover art of Cardi B’s “career launching” 2016 mixtape Gangsta...
Federal Circuit Holds Bar on Registering “Trump Too Small” Violates First Amendment
On Thursday, the Federal Circuit decided In re Elster and reversed the Trademark Trial and Appeal Board’s (TTAB) rejection of a trademark application by Steve Elster to register “Trump Too Small” on t-shirts and other apparel. An example of the relevant merchandise can be seen here. The examining attorney for the Patent and Trademark Office...