Bar Association of Erie County Bulletin
March/April 2024
Alexander C. Kaczmarek
In the November/December 2023 column article, we discussed Anderson v. Stability AI Ltd. as part of a larger discussion on the use of copyrighted works as training inputs and in generative AI outputs. One point of interest when discussing Anderson v. Stability AI Ltd. was the inclusion of a right of publicity claim: alleging that defendants’ generative AI programs and related marketing misappropriated plaintiffs’ names and artistic identities in violation of their statutory and common law right of publicity. Each defendant—DeviantArt, Inc., Stability AI, Ltd., Stability AI, Inc., and Midjourney, Inc.—filed a motion to dismiss against, in part, the right of publicity claims. In plaintiffs’ opposition to defendants’ motions to dismiss, plaintiffs retreated from reliance on their “‘artistic identities’ or distinctive styles allegations and recast both types of right of publicity claims as based on each defendant’s ‘misuse of their names.’”[1]
On October 30, 2023, the court in Anderson v. Stability AI Ltd. dismissed plaintiffs’ right of publicity claims, with leave to amend, for failure to state a claim.[2] However, in response, plaintiffs’ amended complaint did not amend the statutory and common law right of publicity claims, but instead alleged false endorsement by unauthorized commercial use of the artists’ names under the Lanham Act.[3] Despite this departure from right of publicity in Anderson, a discussion of the right of publicity and generative AI outputs lives on through another recent case filed by Jerold Hamza as executor for the Estate of George Carlin.
In Main Sequence, Ltd. v. Dudesy, LLC, it is alleged that defendants, through the Dudesy Podcast, created and released a “video [that] used an AI-generated sound-alike of George Carlin to read out and perform an AI-generated script written in Carlin’s style of humor” and posted multiple “AI-generated image[s] designed to look like the legendary comedian” in association with the video.[4] Plaintiff claims the misappropriation of George Carlin’s likeness violated his right of publicity under statutory and common law right of publicity.[5]
A spokesperson for defendants stated the script was written by one of the defendants and is not a generative AI output, and did not comment on whether the sound-alike voice or images were generative AI outputs.[6] In either case, the complaint addresses this possibility stating:
Thus, whether the Dudesy Special is indeed, from start to finish, the product of an artificial intelligence or simply relies on AI-powered tools to help a human better imitate George Carlin, the result is ultimately same: Defendants always promoted and presented the Dudesy Special as an AI-generated George Carlin comedy special, where George Carlin was “resurrected” with the use of modern technology. In short, Defendants sought to capitalize on the name, reputation, and likeness of George Carlin in creating, promoting, and distributing the Dudesy Special and using generated images of Carlin, Carlin’s voice, and images designed to evoke Carlin’s presence on a stage.[7]
Further, even if the script was a generative AI output, as was demonstrated by Anderson’s discussion of “artistic identities,” it may be difficult to successfully state a claim for a violation of George Carlin’s right of publicity based on a script written in Carlin’s style.
At first glance, the facts of Main Sequence appear novel, but the use of machine learning and generative AI to create deepfakes—“a form of synthetic media in which artificial intelligence is utilized to create a digital copy of a person’s likeness or voice”—has been researched since the 1990s, became commercially available for public use at least as early as 2018, and is subject of a push for increased legislation beginning late last year.[8] On October 30, 2023, President Biden issued an executive order directing the “Office of Management and Budget to consider the risks of deepfake image-based sexual abuse of adults and children in [its] forthcoming AI procurement guidance, and directs a report and guidelines to promote widespread adoption of industry standards to prevent AI systems from generating abuse material.”[9] To compare, in June 2023, only five states had passed legislation on deepfake technology, but only seven months later, as of February 7, 2024, over 400 AI-related bills (nearly half addressing deepfake technology) have been introduced in more than 40 states in 2024.[10] Initially, a majority of this legislation may focus on deepfake image-based sexual abuse, but has already shown some expansion to include the types of deepfakes present in Main Sequence, providing an additional avenue for recovery beyond violation of the right of publicity.[11]
Anderson v. Stability AI Ltd. and Main Sequence, Ltd. v. Dudesy, LLC demonstrate the evolving legal landscape surrounding the intersection of copyright, right of publicity, and generative AI. While Anderson highlighted the complexities of asserting right of publicity claims in the context of generative AI outputs generally, Main Sequence introduces a path forward where the generative AI output is a look-alike or sound-alike of an identifiable person. Beyond the courtroom, the past six months have shown a greater legislative focus placed on deepfake technology and generative AI. Even as cases are decided and legislation is enacted, the courts and legislators addressing these issues must remain vigilant in adapting to advances in technology and preventing technological workarounds.
[1] See Plaintiffs’ Opposition to Defendant DeviantArt, Inc’s Motion to Dismiss at 18-21, No. 3:23-cv-00201-WHO (N.D. Cal. June 2, 2023); Plaintiffs’ Opposition to Defendants’ Stability AI, Ltd. and Stability AI, Inc’ Motion to Dismiss at 19-22, No. 3:23-cv-00201-WHO (N.D. Cal. June 2, 2023); Plaintiffs’ Opposition to Defendant Midjourney, Inc.’s Motion to Dismiss Plaintiff’s Complaint and to Strike Class Claims at 17-20, No. 3:23-cv-00201-WHO (N.D. Cal. June 2, 2023).
[2] Order on Motions to Dismiss and Strike at 19, Anderson v. Stability AI Ltd., No. 3:23-cv-00201-WHO (N.D. Cal. Oct. 30, 2023).
[3] First Amended Complaint at 69-71, No. 3:23-cv-00201-WHO (N.D. Cal. Nov. 29, 2023). The First Amended Complaint also reformed the “artistic identity” right of publicity claim as a trade dress claim.
[4] Complaint at 11-12, Main Sequence, Ltd. v. Dudesy, LLC, No. 2:24-cv-00711 (C.D. Cal. Jan. 25, 2024).
[5] Id. at 19-21.
[6] See Christopher Kuo, George Carlin’s Estate Sues Podcasters Over A.I. Episode, N.T. Times, Jan. 29, 2024, at C0.
[7] Complaint at 14-15, Main Sequence, Ltd. v. Dudesy, LLC, No. 2:24-cv-00711 (C.D. Cal. Jan. 25, 2024).
[8] See Caroline Quirk, The High Stakes of Deepfakes: The Growing Necessity of Federal Legislation to Regulate This Rapidly Evolving Technology, Princeton Legal J. (June 19, 2023), https://legaljournal.princeton.edu/the-high-stakes-of-deepfakes-the-growing-necessity-of-federal-legislation-to-regulate-this-rapidly-evolving-technology/; Sam Haysom, People Are Using Face-Swapping Tech to Add Nicolas Cage to Random Movies and What Is 2018, Mashable (Jan. 31, 2018), https://web.archive.org/web/20190724221500/https://mashable.com/2018/01/31/nicolas-cage-face-swapping-deepfakes/.
[9] See FACT SHEET: President Biden Issues Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence, The White House (Oct. 30, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/10/30/fact-sheet-president-biden-issues-executive-order-on-safe-secure-and-trustworthy-artificial-intelligence/; Marking Domestic Violence Awareness and Prevention Month with Action, The White House (Nov. 5, 2023), https://www.whitehouse.gov/gpc/briefing-room/2023/11/05/dvam2023/.
[10] Quirk, supra note 8; Ryan Heath, Exclusive: States Are Introducing 50 AI-Related Bills Per Week, Axios (Feb. 14, 2024), https://www.axios.com/2024/02/14/ai-bills-state-legislatures-deepfakes-bias-discrimination.
[11] For example, on March 21, 2024, Tennessee Governor Bill Lee signed the Ensuring Likeness Voice and Image Security (ELVIS) Act, which updated Tennessee’s Protection of Personal Rights law to include protections against the misuse of AI in creating sound-alikes. See PHOTOS: Gov. Lee Signs ELVIS Act Into Law, TN Off. of the Governor (Mar. 21, 2024), https://www.tn.gov/governor/news/2024/3/21/photos–gov–lee-signs-elvis-act-into-law.html.