The Right Of Publicity In The AI Age

• Published date: 02 November 2023
• Subject Matter: Intellectual Property, Media, Telecoms, IT, Entertainment, Technology, Copyright, Music and the Arts, New Technology
• Law Firm: Quinn Emanuel Urquhart & Sullivan
• Author: Mr John B. Quinn, Shon Morgan, David Armillei, Renita Sharma and Hope D. Skibitsky

Their defense was essentially that this is not big deal. Instead of being a fly on their forehead, it is now a bee in their ear. I feel like maybe we've made the path easier for others to follow. Now I have a fence around my larynxization.1

I. Overview

In April 2023, social media platforms were abuzz about a new song that had been anonymously posted to Tik Tok.² "Heart on My Sleeve," which apparently reflected a collaboration between Drake and The Weeknd (two of music's biggest stars), soon became one of the most streamed singles in the country, garnering tens of millions of plays. All the details seemed right'the vocal timbre and inflection, the delivery, the production. But, as the poster disclosed, neither artist had anything to do with the track, which was an original composition and sound recording that used copycat vocals generated by artificial intelligence ("AI"). Like Tom Waits, who once sued to defend his unique "larynxization" from a sound-alike, lawyers affiliated with Universal Music Group were able to quickly convince streaming services to remove the track. In addition to copyright (which arguably did not apply), counsel for Drake and The Weeknd wielded an important weapon that Waits had previously employed as a "bee in the ear": the right of publicity.

The right of publicity, a common-law or statutory tort available in most states, is a relatively recent addition to plaintiffs' arsenals. Designed to protect against the misappropriation of one's name, likeness, or identity for a commercial purpose, the right is now evolving beyond its celebrity-centric origins to serve as a commodity potentially held by anyone connected to or threatened by the internet. Technology-inspired shifts have caused companies to recognize that everyone's identity has value (not just celebrities, artists, or influencers) while the explosive growth of generative AI has produced works that echo'with near-complete precision'established styles, characteristics, and personas. Thus, what once had been a consideration pertinent to only a select few whose public identities required safeguarding from human threats is now an urgent matter relevant to all persons who require protection from machine-based models and applications.

Given the tectonic changes currently underway, this note first explores how the right of publicity initially developed; in doing so, it touches on several decisions in the pre-digital age that established important principles affecting current jurisprudence. Next, we discuss how certain types of cases prevalent in the pre-internet era have reappeared in recent years, albeit in slightly altered form. We then analyze how today's landscape has been radically altered by new technologies and practices, such as deepfakes, style transfers, web scraping, and the sale of Personally Identifiable Information ("PII"), and then review the latest cases involving the right to publicity in these areas. Finally, we conclude by looking at how the contours of the right of publicity might change in the near future, such as through the passage of a preemptive federal right or the clarification of the right's scope of liability.

II. The Development of the Right of Publicity

The right of publicity in the United States "is meant to protect the value of an individual's name, likeness, or other indicia of identity, by preventing it from being commercially exploited by another."³ Originally intertwined with the right to privacy, following the Second Circuit's 1953 decision in Haelan Labs., Inc. v. Topps Chewing Gum, Inc.,⁴ courts and legislatures "came to recognize a distinction between the personal right to be left alone and the business right to control use of one's identity in commerce."⁵ The right to privacy protects a person's "dignity and peace of mind," prevents him from being exposed to "the public eye" without permission, and compensates him for "injury to feelings."⁶ In contrast, the right of publicity is "property-like in nature"; it serves a "'commercial, rather than a personal tort,' with damages calibrated in terms of commercial harm."⁷

The right of publicity is currently a creature of state law, and approximately 36 states recognize the tort of a violation of one's right of publicity, either by common law, statute, or both.⁸ The minority of states that do not recognize the right of publicity tend to recognize a similar invasion of privacy tort.⁹ A claim for violation of the right of publicity generally requires that the plaintiff show: (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.¹⁰ The plaintiff may also be required to establish "a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose."¹¹

The contours of the right of publicity vary by state. In general, the right encompasses product advertisements but does not extend to news, entertainment, creative works, or other First Amendment-protected depictions.¹² While some jurisdictions specifically prohibit the commercial appropriation of an individual's "name, voice, signature, photograph, or likeness,"¹³ others more broadly prohibit the use of "the indicia of identity of a person."¹⁴ In some states, use of a plaintiff's likeness is sufficient to trigger liability, while others impose liability "only for use of a plaintiff's likeness in connection with an advertisement or solicitation."¹⁵ Whether the right of publicity continues post-mortem is also highly variable, with approximately 25 states recognizing some form of a right of publicity that continues after death'including, notably, California and New York.¹⁶

In the states that favor the more liberal application of the right of publicity, what initially began as a man's limited "right in the publicity value of his photography, i.e., the right to grant the exclusive privilege of publishing his picture,"¹⁷ soon grew well beyond a person's portrait or picture following a series of "impersonator" cases'notably, Onassis v. Christian Dior-N.Y., Inc.,¹⁸ which involved a print advertising campaign by Christian Dior based around a model who "bore a striking resemblance" to Jacqueline Kennedy Onassis; Midler v. Ford Motor Co.,¹⁹ which involved Ford's use in a television advertisement of a sound-alike singer to match the intonation and styling of Bette Midler; Waits v. Frito-Lay, Inc.,²⁰ which involved SalsaRio Doritos' use in a radio advertisement of sound-alike singer to match the gravelly voice of Tom Waits; and White v. Samsung Elec. Am., Inc.,²¹ which involved Samsung's use in a print advertisement of a robot whose wig, gown, and jewelry matched the style of "Wheel of Fortune" hostess Vanna White.

Collectively, these and similar cases²² from the more liberal jurisdictions stand for two important propositions:

First, the right of publicity protects against more than mere appropriation of one's name or likeness. Instead, the right of publicity also extends to one's "persona." This is a broad and flexible concept for which bright-line rules and exact parameters generally do not exist, but which ensures that liability is more likely to attach where a relevant segment of the public can connect the plaintiff to the commercial work. Accordingly, the right of publicity can be said to protect more than just direct duplications of an original; it safeguards phrases, mannerisms, and the total sum of elements that result in an "unequivocal association the public could make with the individuals involved."²³ Because "[t]hese elements are 'different in kind' from those in a copyright infringement case," which is concerned with the unauthorized use of a fixed work in a tangible medium of expression,²⁴ a claim seeking redress under the right of publicity may be able to avoid federal copyright law preemption.

Second, the right of publicity does not require that actionable appropriations of identity be accomplished through any particular means. "It is not important how the defendant has appropriated the plaintiff's identity, but whether the defendant has done so."²⁵ Significantly, courts have kept the means of appropriation open-ended. In doing so, they have recognized "the impossibility of treating the right of publicity as guarding only against a laundry list of specific means of appropriating identity," reasoning that to limit in advance the specific means would invite "the clever advertising strategist" to create work-around solutions.²⁶

III. The Right of Publicity in the Digital Era

1. More of the Same?

In the pre-digital age, right of publicity claims were "most frequently invoked by public figures or celebrities."²⁷ This made sense given the pleading requirement that "the plaintiff must generally have developed a property interest with financial value in order to prove that he suffered damages"²⁸ and, during that era, those who intentionally placed themselves "in the public eye" were those who possessed cognizable "commercial value that attaches to their identities by virtue of their celebrity."²⁹

The strong link between celebrity and the right of publicity has continued into the current digital era, with many of the same types of cases reappearing in slightly modified form. For example, like Vanna White seeking redress for the use of a look-alike robot in an advertisement, actress Lindsay Lohan brought a lawsuit in 2014 against the makers of the video game "Grand Theft Auto V" in which she alleged that the game's use of a digital avatar that resembled aspects of her persona violated her right of publicity.³⁰ And, like Bette Midler and Tom Waits before him, singer Rick Astley recently filed a right of publicity claim against the rapper Yung Gravy for using an "indistinguishable imitation of Mr. Astley's voice throughout the song 'Betty (Get Money).'"³¹ Astley's case is particularly interesting given that Yung Gravy acquired...