AI And The Right Of Publicity: A Patchwork Of State Laws The Only Guidance, For Now

• Published date: 24 January 2024
• Subject Matter: Privacy, Technology, Privacy Protection, New Technology
• Law Firm: Crowell & Moring LLP
• Author: David Ervin and Joachim Steinberg

Although one wouldn't typically look to the Federal Election Commission as a leader in setting regulations about intellectual property, the threat of deep fakes generated by artificial intelligence spurred recent action to prohibit the use of such images in the 2024 elections.¹ The urgency is obvious: peoples' ability to use AI to create fake images has evolved much faster than the technology to detect it or the ability of regulators to manage it.² These concerns are not limited to politics: players in the music industry have been negotiating around the use of generative AI to create music that mimics established recording artists,³ and lawsuits have already surfaced over deep-fake technology across the entertainment industry.⁴ While there is no consensus on how this will affect these industries, or brands in general, Congress has recently taken more urgent actions as well, including the Senate subcommittee on Intellectual Property holding its second hearing in two months on the intersection of AI and the right of publicity.⁵

A Patchwork of State Laws Creates Uncertainty on How Artificial Intelligence May Infringe Upon a Person's Right to Publicity

The right of publicity is generally understood as the right to exploit the commercial value of a person's identity and to prevent others from doing so without consent.⁶ But what the right protects, how it is protected, and for how long, remains a patchwork of different approaches because the right of publicity in the United States is primarily governed by state laws. Twenty-five states have statutes protecting the right, and about thirty-eight states protect the right in some fashion.⁷ But the details are often messy and the legal standards are inconsistent. For example, the duration of protection after death varies widely; while Tennessee protects the post-mortem right of publicity for 10 years,⁸ California protects it for 70.⁹

The rationale for and scope of the rule may also be different in different states.¹⁰ In some states'particularly those with common law rather than statutory approaches to publicity rights'it emerged as a privacy protection, strongly influenced by Justice Louis Brandeis and Samuel Warren's seminal 1890 article, The Right to Privacy.¹¹ In other states, the justification is economic.¹² And the justification might change over time even within a single jurisdiction. New York passed the first statute protecting the right of publicity in 1903, but it wasn't until Haelan Laboratories, Inc. v....