With each astounding advancement in generative AI, the Right to Publicity is becoming increasingly important, particularly for those whose livelihoods depend on monetization of their names, images, and likenesses (NIL). Cases of NIL abuse and exploitation are constantly in the headlines. Protecting these rights has never been more challenging.

Take, for example the recent introduction in the U.S. Senate of the NO FAKES Act, which aims to address the challenges posed by digital replicas and AI-generated content. This proposed federal legislation seeks to protect individuals from unauthorized use of their NIL, allowing them to consent to such uses for up to 70 years after their death. The bill responds to the growing concerns about deepfakes and other AI technologies that can replicate a person's identity with alarming accuracy, raising significant issues of consent and authenticity. The NO FAKES Act sets a uniform standard across states, supplementing existing state laws and providing a civil cause of action for violations.

But is the scope of initiatives like The NO FAKES Act wide enough? How would state laws impact federal legislation? And what about international law? It’s essential that everyone in the content ecosystem – talent, creators, agents, and publishers – has a firm grasp on the origins, current landscape, and future of the right to publicity, as well as on the importance of fostering positive relationships between all parties involved.

The Origin Story of the Right to Publicity

The right to publicity has a fascinating history. In 1953, in a case that involved Tops Trading Cards, a New York judge created precedent by ruling that individuals should have control over the commercial use of their names, images, and likenesses. In the ruling, the judge cited a 1903 right to privacy precedent and built his opinion on that, setting a legal foundation for what we now understand as the Right to Publicity.

Today, despite over a century of this precedent, only half of the states in the US have enacted right to publicity laws. This highlights the pressing need for a comprehensive federal law to protect these rights nationwide. The inconsistency across states creates a patchwork of protections, leaving many without adequate recourse if their likeness is misused.

Generative AI and the Right to Publicity

Generative AI is borderless, with creative tools and workflows that cross local, national, and international borders, not falling under any clear jurisdiction. With AI's ability to create increasingly realistic images and voices, the misuse of someone's likeness becomes a significant issue. This misuse can affect anyone, especially those who rely on their identity for income. Celebrities, athletes, and influencers are particularly vulnerable as their public personas are integral to their careers.

Obtaining consent is crucial but challenging. Consent must be granted by the individual or their representative, creating a complex web of permissions and legal considerations. In practice, this often involves negotiating with agents, managers, or attorneys, which can be time-consuming and complicated. Furthermore, the rapid pace of AI development means that new forms of content creation are emerging faster than the legal frameworks can adapt.

The Role of Technology and Government

To navigate these complexities, both government intervention and technological solutions are necessary. Governments need to update legal frameworks to protect talent, while tech companies must provide tools to help users comply with these laws. The internet's vast reach makes enforcement difficult, but statutory damages and simple, accessible mechanisms for doing the right thing can encourage compliance.

For instance, companies like TrueMedia are developing technologies to detect deepfakes and send takedown notices. While these tools are essential, they are reactive measures. Proactive solutions are also needed, such as creating platforms that make it easy to obtain and verify consent for using someone's likeness. This could involve digital signatures, blockchain technology for transparent records, or centralized databases managed by professional organizations.

Global Perspectives and Challenges

In a globalized world, different countries have varying attitudes and laws regarding the right to publicity. This creates makeshift protections, complicating enforcement and compliance. Providing people with tools to authenticate content and determine its provenance can help mitigate these issues. Authenticity is crucial; people generally prefer consuming real, verified content, and want to protect those they care about.

For example, a YouTube channel dedicated to movie trailers can mislead viewers by posting unofficial trailers spliced together from various sources. Fans eagerly anticipating new releases may be disappointed or confused by these fake trailers. By implementing robust authentication methods, creators can ensure their audiences receive genuine content, maintaining trust and credibility.

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