The right of publicity is a general legal concept that includes rights related to name, image, and likeness. For celebrities, name, image, and likeness are valuable commodities that can be licensed for substantial personal revenue. The right of publicity has an important attribute: the ability to prevent others from using a person’s name, image, or likeness without permission. Aside from the potential loss of licensing revenue, unauthorized use might associate a person with false words or actions that might be highly objectionable to the victim.
Matters have gotten much worse lately with the advent of artificial intelligence (“AI”) programs that can quickly create realistic images that mimic real persons. AI programs can even create convincing audio and voices that can fool listeners into thinking a song or speech was made by a real person.
On the one hand, AI generative programs can serve legitimate commercial and personal interests. Computer generated images are common now in movies and television shows. The AI-generated images and sounds have obviously enhanced the content and quality of such media. In such cases, the use of images and likenesses has been authorized. But, as noted above, the unauthorized use of AI-generated images and sound is a cause for concern.
In most states, victims of unauthorized use of their image or likeness can bring a lawsuit for misappropriation of likeness. Typically, several legal elements must be proven. For example, in California, four elements must be proven:
- The use of an individual’s name or likeness or some unique defining characteristic
- Use is for commercial purposes
- Done without consent or authorization and
- That caused damage or injury to the victim
There are some States without a statute protecting name and likeness. This is also true at the federal level. But, for those states and at the federal level, as a substitute, legal cases can be filed for false/misleading advertising and for deceptive business practices.
Future Legal Issues Regarding the Right of Publicity
Without question, AI-generated images and so-called “deep fakes” are prompting many in the legal and intellectual property fields to consider solutions to various problems. For example, there is a push to have a federal statute that protects name, likeness, and image. This is partly driven by the fact that the laws concerning misappropriation of likeness vary markedly from State to State. Some states, for example, have a limited list of what unique characteristics are protected by the right of publicity. Also, about half of the states recognize the cause of action for persons who are deceased. This creates a property right that can be devised in a Last Will and Testament. But even among the states that allow the right for the deceased, there is a great variation in how long the right lasts after death. In the U.S., it can be as short as 20 years after death or as long as 100.
Another legal issue is who can be held liable. Obviously, the person or business using the unauthorized image, sound, or name, but what about the companies that provide the AI programs for public and commercial use?
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