Protecting Celebrities (Including All Actors) from AI With the Right of Publicity

Artificial intelligence (“AI”) has made it easy to imitate a celebrity’s image and/or voice (“persona”) in a myriad of ways, including in songs, video clips, videogames, NFTs, films, and interactive websites (collectively, “expressive works”). This development raises the stakes on whether celebrities can protect the use of their personas in this brave new world.

The good news for celebrities is that there is a potential right of publicity claim any time someone’s name, likeness, or voice (or imitation thereof) is used for any reason. The bad news for celebrities is the remarkably broad array of potential defenses to the claim, most of which are just plain wrong in the author’s opinion. This article discusses each of these defenses.

Expressive Works: Some cases have held that the First Amendment protects all expressive works against a right of publicity claim, other than advertisements. In the author’s opinion, this line of cases is wrong, since there are countless other limits on the content of expressive works (e.g., defamation, obscenity, and copyright infringement), so there is no reason why violating someone’s right of publicity should not be another limit. It is just not right if someone can produce “Indian Jones VI” using Harrison Ford’s image without his approval.

Some courts limit the defense of expressive works to works that are “transformative,” but there are no guidelines as to when a work is “transformative,” and the cases are all over the board. The test is thus rudderless, and there is no logic as to why “transformative” works should be protected by the First Amendment in any event.

Yet other courts limit the defense of expressive works to works that have a predominant purpose of making a comment about the plaintiff, such as a parody directly relating to the plaintiff, as opposed to a predominant purpose of merely exploiting the commercial value of the plaintiff’s persona.

There is thus now at least a three-way split of authority on whether expressive works are protected by the First Amendment, which encourages forum shopping.

Express or Implied Consent: Another defense is the claim that the plaintiff gave express or implied consent to the use of plaintiff’s persona. Express consent is straightforward, but implied consent is based on the expectations of a reasonable person in the circumstances. Some courts have held that merely doing something in public is implied consent to its publication, which is grossly unfair. For example, in one case a plaintiff that flashed her breasts in public and found herself prominently featured on the cover of one of the infamous “Girls Gone Wild” videos was held to have implicitly consented to it, which of course she did not.

Death: California provides a statutory cause of action for deceased celebrities, but there is a blanket exemption for expressive works, so we could have Marilyn Monroe in “Some Like It Hotter.” The moral of the story for heirs owning persona rights is to sue in states that do not recognize this defense.

Copyright Act Preemption: Many cases hold that the Copyright Act preempts a right of publicity claim, which is similar to giving carte blanche protection for expressive works. The Copyright Act and the right of publicity protect entirely different interests, so this defense is wrong in the author’s opinion. In recognition of the weakness of this defense, the courts have held that it does not apply to advertising, with no rationale for this distinction, and most of the cases that apply this defense would have come out the same way based on implied consent.

Disclaimers: Some uses of celebrity personas by AI expressly state that the persona is unauthorized. If such disclaimers were allowed as a defense, the right of publicity would be eviscerated, so this defense should not be allowed.

Conclusion: There is currently a raft of inconsistent and overlapping defenses, most of which are senseless, gut the right of publicity, and result in forum shopping by one side or the other due to conflicting state laws. Based on the explosion of AI, it is time for Congress to pass uniform legislation that provides clear, limited defenses to a right of publicity claim.