AI Publicity Violations

Generative artificial intelligence has supercharged tools capable of creating accurate digital likenesses of real people. These advancements have reignited debates about balancing creative freedom and personal rights. AI advancements raise questions about right-of-publicity laws, which define when a creator must seek a person’s permission and compensate him for the use of his name, image, likeness or voice. But state and federal legislators shouldn’t overreact to these astounding advances in technology. The U.S. already has legal infrastructure built on the First Amendment that’s well suited to handle this new creative outlet. Storytellers would be at risk of censorship without the First Amendment. Its protection empowers creators to tell stories that benefit society culturally and economically. The Motion Picture Association reports that America’s film and television industry supports 2.74 million jobs, and movies filmed on location inject $670,000 daily into local communities. Still, creative freedom isn’t limitless. Writers and producers must seek permission to use a person’s name, image, likeness or voice for commercial purposes, such as advertising or merchandising, but not for certain uses in expressive works such as film, TV shows and books. Biopics, docudramas, parodies and satire are generally protected by the First Amendment. These exemptions are typically codified in right-of[1]publicity laws, protecting these kinds of stories from potential liability. In a unanimous decision, Judge Anne Egerton of California’s Second District Court of Appeal offered a clear explanation of the reasoning behind this distinction in De Havilland v. FX Networks (2018). “Books, films, plays, and television shows often portray real people,” she wrote. “Whether a person portrayed in one of these expressive works is a world-renowned film star— ‘a living legend’—or a person no one knows, she or he does not own history. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.” The rise of generative AI has prompted a flurry of state and federal legislative proposals that upend this common[1]sense approach and make the creative process far more litigious. Tennessee’s new Elvis Act, for example, aims to protect musicians from unauthorized use of their voices by AI—but the regulation goes too far by creating a chilling effect over the use of new digital technology. The legal framework that protected films such as the biographical drama “Steve Jobs” (2015) could be threatened by new laws with overbroad language. As a result, film producers and their legal teams might self-censor at the expense of expressive speech. If legislators want to expand on existing laws to pro[1]tect against potential AI abuses, they should include straightforward statutory ex[1]emptions that specify what uses of AI are permitted before filmmakers spend tens of millions of dollars producing a movie or TV show. Statutory exemptions would also provide clear guidelines to courts, helping avoid lengthy, complicated and ex[1]pensive litigation. This could mean the difference between resolving a dispute with a letter or early motion to dismiss rather than going through years of litigation. Creators would then be able to defeat baseless lawsuits quickly, just as they have been able to do within the framework of traditional right-of-publicity laws. This would be especially useful in state courts where judges often don’t have law clerks or research attorneys to delve into federal constitutional law. To be sure, there are legitimate reasons for being concerned about AI. High-profile examples of abuse—such as AI-fabricated music impersonating musicians Drake and the Weekend, or viral deep fake nudes of Taylor Swift—have triggered righteous outrage from the public and elected officials. Generative AI will soon be able to produce nearly perfect digital facsimiles, and those tools will be available to the masses. Therefore, the thinking goes, new protections must be stronger than traditional right-of-publicity laws. This thinking overlooks that, under existing law, individuals already have effective channels to guard against abuses. Creating overzealous regulations would upset the balance creative industries have worked for years to achieve. The result would be less expressive freedom for filmmakers, writers and artists.

Source:WSJ