A valuable intellectual property right available to all humans in the US is the right to control the commercial use of one’s likeness, image, name, and other personally identifiable aspects of one’s persona (for example, in some states, one’s voice). This “right of publicity” (called the “right of privacy” in New York) is a creature of state law—there is no federal law granting these rights. The now widespread use of artificial intelligence (AI), which can be used to easily replicate a person’s image, likeness, voice, and other personal characteristics, has created some warranted concerns regarding AI’s impact on publicity rights.
In California, Section 3344 of the California Civil Code establishes that the use of a person’s “name, voice, signature, photograph, or likeness” on products or in advertising without consent violates that person’s publicity rights. In October, California Governor Gavin Newsom signed into law Senate Bill 683, which updates the law to expand the remedies available to individuals whose publicity rights have been violated, and to keep up with the impact of AI on these rights. The changes are as follows:
First, in addition to the money damages originally provided by the California Civil Code, SB 683 makes an injunction or temporary restraining order available to plaintiffs. As a result of this change, a plaintiff may seek a court order giving a defendant two days to cease the unpermitted use of the plaintiff’s likeness (unless otherwise specified in the court order).
Second, California’s publicity rights statute now includes digital replicas, including AI-generated digital replicas, in the definitions of “voice” and “likeness.” Therefore, a defendant cannot avoid liability by claiming that the depiction of the plaintiff in the product or advertisement at issue was simply an AI-generated avatar or other digital replica.
To illustrate the effect of these changes, consider this scenario: Your company sells soda, and your marketing department created an AI avatar to promote the soda. The AI avatar appears in TV commercials and social media posts as your company’s spokesperson, and their synthesized voice is used for radio and music streaming ads—you even begin printing an image of the avatar on cans of your soda. Unfortunately, the avatar is the spitting image of a famous actor. Under the newly amended California publicity rights statute, the actor may be able to secure a court order requiring that you cease use of their likeness, and you may owe the actor “the greater of seven hundred fifty dollars…or the actual damages suffered by them as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages,” as well as attorney’s fees and even punitive damages. Cal. Civ. Code § 3344(a).
Bottom line: exercise caution in using AI to design product labels and create marketing materials that embody aspects of any real person’s persona, as your AI creations may infringe the rights of that person. Also keep in mind that all people have a right of publicity—not just well-known people. Finally, remember that copying illustrated versions of a person’s likeness may also trigger a right of publicity claim, as well as a claim for possible copyright infringement by the owner of the original illustrated version.
While there is no federal law governing rights of publicity per se, the US Patent and Trademark Office’s Trademark Trial and Appeal Board (TTAB) has held that if someone attempts to register as a trademark (or part of one) an element of another’s persona, such could be found to be a violation of that person’s right of publicity under Section 2(a) of the Trademark Act, which prohibits registration of a mark that falsely suggests a connection to that person. Univ. of Notre Dame du Lac v. J.C. Gourmet Food Imps. Co., 703 F.2d 1372, 1375–76, 217 USPQ 505, 508–09 (Fed. Cir. 1983), aff’d, 213 USPQ 594 (TTAB 1982). In that case, the TTAB extended the right of publicity to a non-person, namely the University of Notre Dame. See also Trademark Manuel of Examining Procedure § 1203.03.