By: Alexandra Fernandez
Published on: October 28, 2024
On August 19, 2024, former President Donald Trump posted an AI-generated image of Taylor Swift alongside a striking quote stating, “Taylor wants YOU to VOTE for DONALD TRUMP”.[1] Thousands of ‘Swifties’ ran to social media to express their disdain and discomfort with the use of the popstar’s name, image, and likeness to endorse the candidate’s presidential campaign.[2] Some of these fans even wanted Ms. Swift to sue Donald Trump for using this AI-generated image without her consent.[3] Although there may be a clear injury, it is unclear what exactly she could sue Donald Trump for.[4] “Right of Publicity” laws may be the answer, but they only exist by statute in twenty-five out of the fifty states.[5] Even then, each state varies drastically in who and what is covered by the cause of action.[6] With the rise of AI, there is a pressing need for a federal Right of Publicity law that protects the name, image, and likeness of all American people.[7]
The Right of Publicity relies on the principle that it “is the inherent right of every human being to control the commercial use of his or her identity.”[8] Consequently, Right of Publicity laws protect against the unauthorized commercial use of a person’s name, image, or likeness.[9] The concept of the Right of Publicity grew out of an article by Samuel Warren and then-future Supreme Court Justice Louis Brandeis titled The Right to Privacy.[10] Although published in the late 1800s, long before the development of AI, the article expressed a deep concern with the unauthorized commercial use of a person’s photograph.[11] Within their analysis, Warren and former Justice Brandeis likened an individual’s likeness to an individual’s property, conceptualizing a new intellectual property right to an individual’s self.[12] In 1953, the Second Circuit Court of Appeals became the first court to use the phrase “Right to Publicity” in a court decision.[13] In 1977, the Supreme Court decided Zacchinni v. Scripps-Howard Broadcasting Co., the Court’s first and only ruling on the Right of Publicity.[14] Today, thirty-five states recognize the Right of Publicity.[15] However, only twenty-five of those states have statutorily codified the Right of Publicity, and there is currently no federal Right of Publicity law.[16]
According to the American Bar Association, Right of Publicity laws require plaintiffs to prove two elements: the existence of a right and an infringement.[17] Depending on the jurisdiction, different qualifications exist to prove the existence of a Right of Publicity.[18] In some states, the right extends only to certain groups of people, most commonly celebrities or members of the armed forces.[19] In other states, the right is restricted to individuals alive at the time of injury or is valid only for a limited time after a person’s death.[20] The second element presents additional barriers by requiring the plaintiff to prove the defendant’s unauthorized use of their identity or persona and show an injury-in-fact caused by such use.[21] As a result of this high standard of proof and the complex state-by-state approaches, individuals and attorneys are forced to navigate a confusing legal landscape with very few mechanisms for relief.[22]
It is irrefutable that AI has made it extremely easy to imitate the identifiable characteristics of an individual without their consent. In the past, people primarily faced the threat of unauthorized use of existing images or time-consuming artworks mimicking their name, image, and likeness, much like the type which concerned Samuel Warren and former Justice Brandeis.[23] Today, people have to confront the threat of a cheap, accessible, automated, and unregulated process to create images, videos, sound recordings, et cetera that often bare an indistinguishable resemblance to an individual’s real-life persona.[24] While generative AI has increased the number and frequency at which such fake images are created, demanding an expansion of Right of Publicity laws across the country, it has also created new grey areas in other aspects of intellectual property law.[25] In the world of copyright, these grey areas may enable future defendants to argue that AI consitutes a transformative use of a plaintiff’s identity. This argument, if successful, may immunize AI content from copyright infringement, thus preventing a plaintiff from controlling the rights to iderations of their name, image, and likeness.[26] Given these concerns, alongside the previously addressed issues surrounding current Right of Publicity laws, the only viable solution is for Congress to take action that standardizes the cause of action and properly addresses the development of AI.[27]
Although the Taylor Swift example is relatively unique due to her position as an influential figure, this is a serious issue that afflicts both celebrities and ordinary people alike.[28] According to the Pew Research Center, forty-one percent of U.S. adults have personally experienced online harassment, which includes offensive name-calling, purposeful embarrassment, stalking, physical threats, harassment over a sustained period, and sexual harassment.[29] Women, LGTBQ+ individuals, and racial or ethnic minority groups are disproportionately affected, reporting higher rates of harassment compared to their male, heterosexual, or white counterparts.[30] These statistics demonstrate that anyone can fall victim to AI misuse and online harassment. Consider the story of fifteen year old Francesca Mani, one of thirty girls in a New Jersey highschool victimized by the creation of an AI-generated sexually explicit image bearing her likeness.[31] Without a broad and federally-imposed Right of Publicity, vulnerable individuals like Francesca are left susceptible to growing online violence and the commercialization of that violence
The solution is straightforward. As of January 2024, many congressional representatives have called for a federal Right of Publicity law to fight against the increasing use of AI.[32] Proponents argue that such a statute could alleviate the burdens, costs, and complexities involved in the current legal landscape, making it easier to remedy injuries caused by AI misuse.[33] Additionally, advocates argue that a new federal law will enable a wider variety of plaintiffs, previously unprotected by Right of Publicity laws, to take action against the unconsensual online use of their name, image, and likeness.[34] By enacting comprehensive federal legislation, we can better protect individuals’ property rights to their own persona and mitigate the risks posed by emerging AI technology.
[1] Elizabeth Wagmeister & Kate Sullivan, Trump Posts Fake AI Images of Taylor Swift and Swifties, Falsely Suggesting He Has the Singer’s Support, CNN (Aug. 28, 2024, 2:09 PM), https://www.cnn.com/2024/08/19/politics/donald-trump-taylor-swift-ai/index.html; see Dan Merica & Ali Swenson, Trump’s Post of Fake Taylor Swift Endorsement is His Latest Embrace of AI-Generated Images, Associated Press (Aug. 20, 2024, 4:48 PM), https://apnews.com/article/trump-taylor-swift-fake-endorsement-ai-fec99c412d960932839e3eab8d49fd5f (detailing the incident and broader context of the the rise of AI and political campaigns).
[2] See Rachel Looker, Trump Falsely Implies Taylor Swift Endorses Him, BBC (Aug. 19, 2024), https://www.bbc.com/news/articles/c5y87l6rx5wo (claiming that Swifties accused Trump of spreading misinformation).
[3] See Kat Tenbarge, The AI-Generated Taylor Swift Endorsement Trump Shared was Originally a Pro-Biden Facebook Meme, NBC News (Sept. 13, 2024, 6:12 PM), https://www.nbcnews.com/tech/tech-news/ai-taylor-swift-endorsement-trump-shared-was-originally-biden-meme-rcna170945 (stating that the person who created the original AI image read comments that Ms. Swift may sue over it).
[4] See Jordan Rubin, Could Taylor Swift Sue Trump Over His Social Media Post?, MSNBC (Aug. 20, 2024, 5:28 PM), https://www.msnbc.com/deadline-white-house/deadline-legal-blog/taylor-swift-sue-trump-truth-social-post-ai-rcna167380; Todd Spangler, Donald Trump Isn’t Worried Taylor Swift Will Sue Him Over Fake Endorsement Post With AI Images: ‘Somebody Else Generated Them,’ Variety (Aug. 22, 2024, 8:19 AM), https://variety.com/2024/digital/news/donald-trump-taylor-swift-sue-over-fake-ai-images-endorsement-1236115104/ (reporting that Donald Trump stated that he is not concerned about a suit over the AI image of Ms. Swift as he did not create the image himself).
[5] See Nicole Chavez, Taylor Swift Fake Posted By Trump Highlights Challenges in AI Misuse Regulation, CNN (Aug. 24, 2024, 2:57 PM), https://www.cnn.com/2024/08/24/us/ai-content-laws-taylor-swift-trump/index.html (proposing that Ms. Swift may use Tennessee’s Right of Publicity law to sue former President Donald Trump, while highlighting the challenges to this approach); Christopher T. Zirpoli, Artificial Intelligence Prompts Renewed Consideration of a Federal Right of Publicity 1 (2024) (describing the state of Right of Publicity laws in 2024).
[6] Zirpoli, supra note 5, at 1.
[7] Dominic Rota & Scott M. Douglass, Re-Considering the Right of Publicity in the World of Generative AI, Baker Donelson, 3 (July 2, 2024), https://www.bakerdonelson.com/re-considering-the-right-of-publicity-in-the-world-of-generative-ai.
[8] Mark Roesler & Garett Hutchinson, What’s in a Name, Likeness, and Image? The Case for a Federal Right of Publicity Law, A.B.A. (Sept. 16, 2020), https://www.americanbar.org/groups/intellectual_property_law/publications/landslide/2020-21/september-october/what-s-in-a-name-likeness-image-case-for-federal-right-of-publicity-law/.
[9] Zirpoli, supra note 5, at 1.
[10] Roesler & Hutchinson, supra note 8; see generally Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890).
[11] Roesler & Hutchinson, supra note 8.
[12] Id.
[13] Id.
[14] Id.; see generally Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977) (ruling that the First Amendment does not immunize a news media company from liability under Ohio’s Right of Publicity law).
[15] Zirpoli, supra note 5, at 1.
[16] Roesler & Hutchinson, supra note 8.
[17] Rota & Douglass, supra note 7.
[18] Id.
[19] Id.
[20] Id.
[21] Id.
[22] See Roesler & Hutchinson, supra note 8.
[23] See generally Warren & Brandeis, supra note 10.
[24] Jennifer Kenedy & Jorden Rutledge, Death By A Thousand Cuts: Right of Publicity in the Age of AI, JDSUPRA (May 31, 2023), https://www.jdsupra.com/legalnews/death-by-a-thousand-cuts-right-of-8578503/ (claiming that AI democraticized the process of imitating an individual’s name, image, and likeness).
[25] See Anthony J. Dreyer, Video Games, the Right of Publicity, and Transformative Use: Forumlating an Objective Standard, BL (Nov. 11, 2011, 12:00 AM), https://news.bloomberglaw.com/ip-law/video-games-the-right-of-publicity-and-transformative-use-formulating-an-objective-standard# (presenting potential problems in squaring the transformative use defense to copyright infringement with Right of Publicity); see also David Ervin & Joachim B. Steinberg, AI and the Right of Publicity: A Patchwork of State Laws the Only Guidance, For Now, Crowell (Dec. 12, 2023), https://www.crowell.com/en/insights/client-alerts/ai-and-the-right-of-publicity-a-patchwork-of-state-laws-the-only-guidance-for-now.
[26] See generally Richard Stim & Glen Secor, Fair Use: What is Transformative?, NOLO (June 30, 2023), https://www.nolo.com/legal-encyclopedia/fair-use-what-transformative.html (providing background on the transformative use defense to copyright infringement) (detailing a shocking case of transformative use).
[27] See Zirpoli,, supra note 5, at 5-6.
[28] See generally Imran Rahman-Jones, Taylor Swift Deepfakes Spark Calls in Congress for New Legislation, BBC (Jan. 27, 2024), https://www.bbc.com/news/technology-68110476 (discussing the use AI to create a pornographic deepfake of Taylor Swift); Bobby Allyn, Scarlett Johansson Says She is ‘Shocked, Angered’ Over New ChatGPT Voice, NPR (May 20 2024, 7:16 PM), https://www.npr.org/2024/05/20/1252495087/openai-pulls-ai-voice-that-was-compared-to-scarlett-johansson-in-the-movie-her (demonstrating the reaction of another celebrity, Scarlett Johansson, to the nonconsensual use of her voice in the OpenAI platform).
[29] Emily A. Vogels, The State of Online Harassment, Pew Rsch. Ctr. (Jan. 13, 2021), https://www.pewresearch.org/internet/2021/01/13/the-state-of-online-harassment/.
[30] Id.
[31] Tate Ryan-Mosley, Meet The 15-Year-Old Deepfake Victim Pushing Congress Into Action, MIT Tech. Rev. (Dec. 4, 2023), https://www.technologyreview.com/2023/12/04/1084271/meet-the-15-year-old-deepfake-porn-victim-pushing-congress/.
[32] See Zirpoli, supra note 5, at 5-6.
[33] See Roesler & Hutchinson, supra note 8.
[34] See id.