The Right of Publicity and Scarlett Johannson’s response to ChatGPT Sky voice

Details and context matter in Right of Publicity analysis. As a brief summary, OpenAI recently released its ChatGPT 4.0 with a chatbot voice (“Sky”) which Scarlett Johannson says is “eerily similar” to hers. We don’t know how the situation may get resolved, but the Right of Publicity provides a response. Apparently, an offer was made by OpenAI for Johannson to voice the ChatGPT 4.0 chat bot. Johannson declined. It may have seemed like a natural fit due to Johannson’s role in the movie Her in which she was the voice of an AI system. Perhaps that fit was so natural that on May 13, 2024 in proximity to the release, Sam Altman issued a one-word tweet: “her.” Past negotiations and this tweet could be the subject of considerable attention, as an example of why “details and context matter” when it comes to the Right of Publicity. The company has denied that Sky was meant to sound like Johannson, but these details could possibly indicate otherwise.

Here is a link to one of numerous articles providing more details: Scarlett Johannson ChatGPT voice that sounded like her

Bijan Mustardson illustrates Right of Publicity (NIL) in action

In what may be a contender in the “most clever” licensing event of recent times, the running back for Texas, Bijan Robinson, is involved in a mustard line launch entitled “Bijon Mustardson.” It is, quite obviously, a dijon mustard. Also, quite obviously, this “NIL deal” is more properly understood as a Right of Publicity matter, though admittedly involving a collegiate athlete. We’ll let semantics have a rest and simply enjoy when the licensing deals practically write themselves. Here’s a link to more info:

Bijan Mustardson” rel=”noopener” target=”_blank”>Bijan

“Public Domain” understanding

An image that can be found in an image provider’s database marked “public domain” does not make it so. Obviously, the recent B.J. Novak odyssey illustrates how far things can go sometimes, but that does not mean his image actually was public domain, that ad agencies and companies were free to use his image on products or in advertising, or that he was without recourse (though he has indicated not being inclined to pursue the end-users). The term “public domain” (like many aspects of intellectual property) gets misused often. The headline of a recent article “How your photo could end up in the public domain – and used in ads around the world” takes a substantial leap and demonstrates the point, though the substance of the article may be helpful.

How photos end up in the public domain – and used in ads around the world

Public Service Announcement: NIL = RoP

Thought everyone should know.

A few thoughts on Forbes’ annual top-earning dead celebrities list

Departing from the usual Halloween release date, Forbes issued its annual top-earning deceased celebrities list on Friday, November 13th in 2020. A few takeaways, in no particular order:

1. Unsurprisingly, given the worldwide pandemic, almost all the reported numbers are down. Some may have more immunity than others, and those that went up, like Dr. Seuss were bolstered by television, movie and media deals. Some of that may be one-time bursts.
2. Elvis Presley was closing in on a 50% decline. Graceland, as a tourist destination, no doubt accounts for much of that given closures in 2020.
3. Prince is down yet again another year further from his death, as has been the trend. The summary on Prince mentions only music sales.
4. Those with the misfortune of making 2019’s list due to early departure, XXXTentacion and Nipsey Hussle, are gone.
5. Those with the misfortune of making 2020’s list due to early departure include Kobe Bryant and Juice WRLD. It will be interesting to see if Kobe Bryant is a one-time, one-year entrant or will make next year’s list as well.
6. Not-much-of-a-prediction: Eddie Van Halen will be on next 2021’s list. Though he passed away over a month prior to the release of the 2020 list, that is neither enough time to account increased sales, nor enough time to process his passing into a list that was no doubt already well underway in October.
7. The article includes a statement about its methodology, which includes sources I use when appropriate in valuations.

Last, a word about the often used term “delebrity” in relation to deceased celebrities. I get it, though it’s never really hit me as particularly clever or useful as a term. More importantly, no one I know who actually works with the heirs, family, and estates of notable deceased icons uses this term. It’s hard to take someone seriously who uses this term in their scholarship, publications, or writings. But keep using it, those who do, because it provides a revealing tell.

Here is a link to Forbes’ 2020 list: https://www.forbes.com/sites/maddieberg/2020/11/13/the-highest-paid-dead-celebrities-of-2020/?sh=37a974e03b4b&utm_source=Licensing+International+Database&utm_campaign=b3b89e5adb-EMAIL_CAMPAIGN_2019_12_18_01_57_COPY_01&utm_medium=email&utm_term=0_ec0e484a60-b3b89e5adb-397655773&mc_cid=b3b89e5adb&mc_eid=a31363c945

Is it okay for Antonio Brown to release a song called “Andrew Luck?”

Sorry to disappoint anyone expecting this blog entry’s title to be answered here, but for a number of reasons, it isn’t. The question can certainly be raised though. Former Steelers, Raiders and Patriots wide received Antonio Brown has released a song or track entitled “Andrew Luck,” which opens with audio from Andrew Luck’s press conference announcing his retirement, and including a repeated refrain with the lyrics:

I got the game and I’m not on stuck
I’m out the way like Andrew Luck
Everybody callin’ my phone, shut up

A while back, Outkast released a song called Rosa Parks. Litigation ensued and Parks won. In short, the song wasn’t about Rosa Parks and the title was deemed a violation of Rosa Parks’ rights. Paraphrasing, a great line from that decision was that “crying artist does not confer carte blanche” to use a person’s name in a way that does not relate to the song, but which certainly serves to bring attention to the track.

There are various other examples. Logic released a song called “Keanu Reeves” which, interestingly and perhaps significantly, does not actually even reference Reeves. Instead, the connection, such as it is, refers to “the one” like Keanu Reeves, which of course is a reference to Reeves’ character Neo in the Matrix film franchise.

The legal test that likely applies best to these facts is the Rogers test, from litigation brought by Ginger Rogers in response a film named “Fred and Ginger.” Rogers lost the claim on the basis that the title was relevant to the film’s title and not simply a ploy to attract attention from Rogers’ name. Conversely, the same test was applied to Outkast’s release of a track called “Rosa Parks.” The lyrics were not about Rosa Parks, and it was determined to be a violation of Parks’ rights and an effort simply to attract attention to the song.

So I’ll leave it to you to decide if Brown’s song “Andrew Luck” is fair, appropriate or permissible, or if it fails the Rodgers test as Outkast’s song did a while back. I expect we’ll never really have this question answered, but it is an interesting reference point to consider in any event.

Here’s a link to the video and a recent interview with Antonio Brown:  Antonio Brown releases track named Andrew Luck

Athletes’ tattoos, copyright, and who owns what

Article in the New York Times examining the issues presented by depicting athletes in video games, and the possibility that the tattoo artist retains an interest in their work (original work of authorship fixed in a tangible medium of expression).  Thus, a human, or skin, is now a tangible medium of expression.

Seems like a simple agreement at the point of origin would fix most of these issues going forward.

Link to the New York Times article:  NYT article on who owns what athlete tattoos and video games

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.

Muhammad Ali lawsuit against Fox for Super Bowl LI promo

Muhammad Ali’s representatives have filed a $30 million lawsuit on behalf of Muhammad Ali Enterprises (MAE) against Fox Broadcasting Company.  The suit centers around a three minute promotional ad for Super Bowl LI which ran before the Super Bowl in 2017.  The spot includes various other personalities, past and present, in addition to Ali who is the focal point.

Here is a link to the complaint:

https://www.documentcloud.org/documents/4105801-Ali-Fox.html