Generative AI and the Right of Publicity in the Digital Age

Written in conjunction with Francesco Maestripieri - MA Law, Bocconi University

What is Generative AI?

Generative AI is a form of artificial intelligence that is capable of creating original content. It is

rapidly becoming a mainstream tool, with both businesses and individuals poised to benefit from its considerable capabilities and accessibility. Nonetheless, the downside to this technology is that it has resulted in the more frequent production of deep-fakes and soundalikes - which respectively mimic or imitate someone’s appearance and voice.

What is Right of Publicity (ROP)?

Right of Publicity is an intellectual property right that protects individuals from the unauthorized commercial use of elements of their identity. Traditionally, the right has been restricted to infringes on an individual's name, image or likeness.

Legal Challenges in the US

The rapid development of AI technologies has significantly outpaced the legal framework

designed to protect individuals’ right of publicity. In the U.S., the current laws are a fragmented patchwork of state regulations, resulting in inconsistencies and significant gaps in protection.However, Tennessee’s newly introduced ‘ELVIS’ Act signifies a wider desire to safeguard against generative AI and takes a bold step towards doing so. The legislation allows the heirs of deceased celebrities to control the commercial use of their likenesses, safeguarding their legacy from unauthorized AI-generated representations. Additionally, it expands ROP protections to include the unauthorized use of someone’s voice.

Despite these state-level efforts, the absence of a unified federal law allows AI technologies to exploit regulatory gaps, raising concerns about unauthorized digital likenesses. The proposed No Fakes Act (2023) aims to create federal protection, making it illegal to create or distribute digital replicas of individuals without their consent. Additionally, the Federal Trade Commission (FTC) is focusing on regulating AI, ensuring companies respect personal rights and enforcing transparency.

AI’s Impact on Business

AI has disrupted industries like entertainment, advertising, fashion, and gaming, creating new opportunities but also raising legal challenges. For example, AI-generated avatars of deceased celebrities, such as Bruce Lee’s likeness in a 2018 ad campaign, showcase both the potential and risks. In fashion and gaming, AI is used to create virtual collections and characters, driving innovation but complicating the application of likeness rights.

These developments underscore the need for clear federal regulations to guide businesses.

Without a unified framework, companies in sectors like AI development (e.g., Adobe, OpenAI) face uncertainty and legal risks when using personal likenesses in AI-generated content.

Conclusion

As generative AI continues to shape industries, the lack of clear federal guidelines complicates the protection of personal likenesses. The No Fakes Act offers a potential solution, providing businesses with clarity and ensuring the responsible use of AI, while protecting individual rights. A cohesive legal framework would help foster innovation in AI technologies while safeguarding personal identity.

Bibliography:

• “Re-considering the Right of Publicity in the world of Generative AI” - Baker Donelson

• “AI, Advertising & the Right of Publicity: Navigating the Legal Landscape & Related

• Risks” - Bloomberg Law

• “Right of Publicity, voice protections, and Artificial Intelligence” - Authors Alliance

• “The King is Back (in the Digital Era) | The ELVIS Act, Generative AI and Right of

• Publicity” - Proskauer Rose LLP