USPTO Roundtable on Right of Publicity, NIL, and Artificial Intelligence

A USPTO roundtable will take place on August 5, 2024 on the topic of Right of Publicity and Artificial Intelligence. USPTO AI Right of Publicity roundtable link The program is called Protecting NIL, Persona, and Reputation in the Age of Artificial Intelligence and will be livestreamed at this link: livestream link for USPTO AI Right of Publicity roundtable

With credit to the USPTO link above, the queries posed for the roundtable consist of:
1. How does the use of unauthorized NIL content harm individuals? Does AI technology exacerbate the creation and use of unauthorized NIL content and harm to individuals? If so, how?
2. How can AI be used as a legitimate and constructive tool in circumstances where individuals grant permission to a third party to use their NIL?
3. Do technological mechanisms or protocols currently exist to identify AI-generated NIL content, to prevent or deter unauthorized AI-generated NIL content, or to remove unauthorized AI-generated NIL content after it has been released? What other types of mechanisms or protocols exist, or should exist, to identify AI-generated NIL content or address unauthorized NIL content?
4. Currently, NIL is primarily protected via state law. In addition, some Federal statutes also address certain misuses of NIL. For example, the Lanham Act includes a provision—15 U.S.C. 1125(a)—that can be used to bring a Federal cause of action in certain circumstances involving NIL misuse. Are current legal protections for NIL rights sufficient? Why or why not?
5. There have been calls for a new Federal law to address unauthorized use of NIL content, including content generated by AI. Should Congress create a new Federal law to protect NIL? If so:
(a) Should current state NIL laws, such as state right of publicity laws, be preempted if a new Federal NIL law is enacted?
(b) What key elements should be incorporated in a new Federal NIL law?
(c) Should any new Federal NIL law protect against all unauthorized replicas of an individual’s NIL or focus on unauthorized AI-generated replicas?
(d) Some state laws addressing NIL protect only well-known individuals. Likewise, many Federal circuit courts require a showing, among other elements, that a plaintiff is famous or recognizable by the public in order to succeed on a claim under 15 U.S.C. 1125(a). Should this requirement of fame or recognizability be included in a new Federal law protecting NIL rights? Why or why not?
(e) Should a new Federal law prohibit non-commercial uses of unauthorized NIL content, such as political deep fakes and revenge pornography?
(f) What types of enforcement mechanisms should be included in any new Federal NIL law?
(g) What elements should be included in a new Federal NIL law to help ensure it does not become obsolete due to rapid changes in AI technology?
(h) Section 230 of the Communications Decency Act states: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Section 230 also expressly provides that “[n]othing in this section shall be construed to limit or expand any law pertaining to intellectual property.” Should any new Federal NIL law be considered an “intellectual property law” for purposes of Section 230 of the Communications Decency Act?
(i) How should Congress address First Amendment considerations in any new Federal NIL law?
(j) Should any new Federal NIL law be incorporated into the Lanham Act?
6. What limits, if any, should be placed on the voluntary transfer of rights concerning NIL to a third party? For example, should there be limits on the duration of such transfers?
7. Questions 1-6 above relate to individuals’ NIL. How should these questions be answered in the context of individuals’ and creators’ reputations?

Hopefully, this roundtable will be a balanced and fair exploration of these topics. The Right of Publicity often lacks a unified voice of support because it is inherently a person-to-person proposition; in contrast, it is opposed by industries, unions, and lobbying arms, or individuals who sometimes seem quite separate from the perspective that only comes from actually working with affected parties.

Regarding point five, the prospect of any Federal Right of Publicity statute must not lose the ground gained over the last 120 years. My hope is that the USPTO’s August 5 roundtable presents a balanced discussion on this critical topic.

Apparently, a transcript and recording of the event will be available after the livestream at this link: Transcript for USPTO AI Right of Publicity Roundtable

Observations about New York’s Assembly Bill A.8155B

One has to marvel at the arguments being attempted in opposition to New York’s Assembly Bill A.8155B.  Here is a link to the bill:  New York Assembly Bill A.8155B

In coverage of the bill (in the Hollywood Reporter coverage, link below), the MPAA says one of the fatal problems with the bill is that it does not have limitations for First Amendment purposes.  Let’s shine the white-hot light of truth on such misinformation with a quick look at S.51 of the bill:

 §  51.  Action  for injunction and for damages.  ...  
    50    2. Right of publicity exceptions. For purposes of the right of public-
    51  ity, consent for use  of  another  individual's  persona  shall  not  be
    52  required, except as otherwise provided in subdivisions three and four of
    53  this section, when used in connection with the following:
    54    (a)  news, public affairs or sports broadcast, including the promotion
    55  of and advertising for a public affairs or sports broadcast, an  account
    56  of public interest or a political campaign;

        A. 8155--B                          5
     1    (b) in:
     2    (i)  a  play,  book,  magazine, newspaper, musical composition, visual
     3  work, work of art, audiovisual work, radio or television program  if  it
     4  is  fictional  or nonfictional entertainment, or a dramatic, literary or
     5  musical work;
     6    (ii) a work of political, public interest or newsworthy value  includ-
     7  ing a comment, criticism, parody, satire or a transformative creation of
     8  a work of authorship; or
     9    (iii) an advertisement or commercial announcement for any of the works
    10  described in paragraph (a) of this subdivision or this paragraph; or
    11    (c)  fundraising  purposes  by  not-for-profit  radio  and  television
    12  stations licensed by the federal communications commission of the United
    13  States, or by not-for-profit advocacy organizations if the  use  is  for
    14  commentary or criticism;
    15    (d)  use  of the right of publicity of a deceased individual where the
    16  licensee or successor in interest has failed  to  register  and  post  a
    17  claim of right under section fifty-h of this article, with the exception
    18  of the safe harbor period listed in subdivision seven of section fifty-h
    19  of this article, until such time as a claim of right has been registered
    20  and posted as required under such section.

Accuracy appears to be the first casualty in the fight against Right of Publicity recognition.  Claiming the First Amendment will be jeopardized and creative works stifled if the legislation is passed is such a popular refrain designed to make every legislator afraid to go against something as fundamental as the First Amendment, that it will be repeated even when the statute specifically contains exactly what it is alleged to lack.

Another observation is the attempt to characterize New York’s bill as something so revolutionary, something so dangerous, that the bill simply must be shelved.  New York’s legislature has been in almost a permanent state of considering this legislation.  Many other states have Right of Publicity recognition firmly in place, and so far, I’m happy to report the First Amendment, creative works, commerce, and freedom in general have not withered in those jurisdictions.  We might have heard about it if these popular, dire predictions actually ever occurred.

Another quick observation relates to the provisions in the bill addressing deep fake uses and digital recreation of a person.  On this point, I might just sit back and listen as the lobbyists attempt to argue against a baseline provision addressing the extreme abuses possible by way of deep fake uses and digital recreation.

Lastly, in the Hollywood Reporter’s coverage, it is suggested that A.8155B isn’t really needed because the Lanham Act, false endorsement and privacy rights already provide adequate recourse.  They  don’t.  That statement would only hold true for the small number of people so famous that they can actually support a trademark claim.  Suggesting that the Lanham Act and privacy rights are a sufficient substitute for the Right of Publicity is simply inaccurate, and this point ought to be beyond debate.  The article says it is not attempting to take offer competing interpretations and that both sides are probably guilty of overreaching, but then comments only on supporters of the bill, with no commentary or insight on how the studios and opponents to the bill may also be overreaching.  Here is the link:  Hollywood Reporter coverage on New York’s Assembly Bill A.8155B

In the ugliness of lobbying, it is apparent that being right, or even knowing what the legislation actually says, is not really an important detail.

Two new video game rulings from the Ninth Circuit, Jim Brown v. EA and Keller v. EA

Two more rulings involving video games came down last week, both from the Ninth Circuit Court of Appeals.

The July 31, 2013 ruling in Jim Brown v. Electronic Arts http://www.edwardswildman.com/files/upload/BrownvEA.PDF determined that Jim Brown’s inclusion in the Madden NFL video game was not an infringement of the Lanham Act §43(a).  The court used the now famously misapplied Rogers test to determine that video games rise to the same level as literary works and thus are entitled to equal First Amendment protection. Once committed to the wrong test, the Court held that under the Rogers test Jim Brown’s likeness was artistically relevant to the game, also noting that there were no facts showing that his inclusion misled consumers about his involvement with the game.

The July 31, 2013 Brown ruling is only in relation to the Lanham Act claim.  The true nature of Jim Brown’s lawsuit is primarily of a Right of Publicity nature (though the Rogers test would have been the wrong test to apply even if the ruling had been on a Right of Publicity claim).  The Court says in a footnote:  “We emphasize that this appeal relates only to Brown’s Lanham Act claim. Were the state causes of action before us, our analysis may be different and a different outcome may obtain.”

This point is reinforced by a ruling in another case on the same day, by the same judge, on similar facts but different claims. Specifically, consider the July 31, 2013 ruling by in Sam Keller v. EA and NCAA, No. 10-15387,  http://www.edwardswildman.com/files/upload/KellervEA.PDF   Here, the Right of Publicity was the claim being considered and the Court distinguished the claims from those in the Jim Brown case.  The Court applied the transformative use test, providing a better fit in most Right of Publicity situations than the Rogers test, which was created for application to titles.  The ruling was in favor of Plaintiff Sam Keller of course because the objective was to recreate Keller as accurately as possible–the antithesis of a transformative use.

Perhaps we have not seen the last of Jim Brown’s claim.