Business Vantage Point Blog

The rapid onset of generative artificial intelligence (AI) — particularly its ability to create hyper-realistic deepfakes and appropriate the image, voice, mannerisms and likeness of celebrities and other public figures (collectively, NIL), sometimes for nefarious or unauthorized purposes — has sparked interest in finding new and novel ways to protect public figures and their NIL. One novel avenue being explored recently is the use of trademark law in conjunction with the rights of publicity and privacy. As generative AI makes it easier to replicate identity, trademark law and the right of publicity are increasingly viewed by some as tools for preserving commercial value, preventing unauthorized exploitation, and addressing consumer confusion.         

What Is the Right of Publicity?

The right of publicity is an intellectual property doctrine that safeguards individuals from the unauthorized use of their NIL, including their voice, signature or photograph for commercial purposes. It is a state-level legal right that allows individuals to control and profit from the commercial exploitation of their likeness and identity. However, because no federal statute exists, protections vary wildly by state. Some states have adopted the right of publicity through legislation, while others recognize it via judicial decisions. The current differences in the various state laws on the right of publicity have created an inconsistent framework for protection. For example, states vary in their treatment of postmortem publicity rights, including whether the right continues after death, how long any such protection lasts, and whether the right may be inherited or assigned.

The Intersection of Trademarks and Right of Publicity

A person’s NIL can, through proper trademark use in commerce and/or registration with the U.S. Patent and Trademark Office (USPTO), function as a trademark under federal law if that person can establish that an aspect of their identity would be recognized as a source identifier. Such trademark protection can confer nationwide rights, and if used and maintained correctly, can last with no end or termination date. As a result, some celebrities register their names, popular phrases and likenesses as trademarks.

Trademark law and the right of publicity serve distinct purposes, but are closely related and often used by celebrities and other public figures to protect the same commercial interests. Trademark law protects words, phrases, symbols and other source-identifying features that distinguish goods or services in the marketplace. Its focus is on the consumer’s perspective, preventing confusion about the source and protecting the goodwill associated with the trademark holder. The right of publicity, by contrast, protects an individual’s identity from unauthorized commercial exploitation. While trademark law protects consumers from confusion, the right of publicity protects the individual’s ability to control the commercial use of their identity. In that sense, the two doctrines operate as two sides of the same coin. This also explains why many celebrities seek trademark registration as a way of controlling how their names and images are used commercially.

Courts consider both bodies of law as close analogs and are increasingly recognizing that each aims to safeguard the commercial value associated with identity. In some jurisdictions, case law has established that the right of publicity focuses on the right of an individual to reap the reward of their endeavors and to prevent unjust enrichment by theft of goodwill, while trademark protection focuses on ensuring consumers know the source of the good or service they are receiving and preventing the theft of goodwill created by the producer of the good or service.

A celebrity’s name, likeness and voice can each be a trademark, indicating source and constituting the protected aspect of identity, focusing on protecting consumers from confusion about the source of the good or service. The right of publicity seeks to protect much of the same interest but on the other side of the coin; rather than focusing on and protecting against consumer confusion, like trademark law, it concerns the ability of a person, especially a celebrity whose identity itself holds commercial value, to control that identity and to decide how their NIL is used in commerce. Both should allow celebrities to protect themselves from unauthorized endorsements, deepfakes or AI-generated likenesses, where the harm is both to the individual’s autonomy and identity and to consumer understanding.

A Fad or a Modern Trend?

The convergence of trademark doctrine and publicity rights may become a defining legal response to AI-enabled reproductions and derivatives, as demonstrated by recent USPTO actions taken by celebrities seeking to formalize protection around their distinctive identity features.

In January, actor Matthew McConaughey obtained eight trademark registrations for several audio specimens of him saying well-known phrases from his films, including, “Just keep livin’, right? I mean, what else are we gonna do?” and “alright, alright, alright,” as well as visual specimens consisting of photographs and videos of himself.

Most recently, in April, singer-songwriter Taylor Swift, following McConaughey’s lead, filed three trademark applications to trademark her voice and likeness. The audio specimens include Swift’s voice saying, “Hey, it’s Taylor Swift,” and “Hey, it’s Taylor,” and the visual specimen is described as “a photograph of Taylor Swift holding a pink guitar, with a black strap and wearing a multi-colored iridescent bodysuit with silver boots. She is standing on a pink stage in front of a multi-colored microphone with purple lights in the background.”

None of these trademarks have been tested in court, including in the context of unauthorized AI-generated uses.

The Need for a Federal Right-of-Publicity Law

Recent cases involving McConaughey and Swift, both of whom have utilized protections at the intersection of federal trademark law and the right of publicity, suggest that other celebrities and individuals whose identities hold commercial value may pursue similar protections for their NIL. As a result, the need for a uniform federal right-of-publicity law is more pressing than ever.

The rapid rise of AI has only heightened that need, particularly given the increasing overlap between the right of publicity and key trademark protections in the entertainment and sports industries. AI tools now allow a celebrity’s NIL to be copied, manipulated and exploited at a speed and scale that existing state law protections may not be equipped to address. A federal regime would provide consistency and reduce the confusion and lack of uniformity created by the current state-by-state framework. It would also relieve some of the burden on courts and the USPTO, which are increasingly required to adapt and stretch existing law, such as the Lanham Act and current right-of-publicity case law, to address gaps exposed by novel AI-related disputes. In addition, a federal law would reduce forum-shopping based on variations in state laws.

A uniform federal law would also give celebrities and other similarly situated individuals considering the McConaughey and Swift approach a greater measure of control over how their identities are used in commerce; clearer guidance on the scope of available protection; and a stronger, more predictable legal framework to challenge unauthorized uses.

Much like trademark law, which provides federal protection while still allowing for parallel state-law rights, a similar structure for right-of-publicity law would allow celebrities with national and global reach to pursue nationwide protection, while preserving state law remedies for more local uses. Ultimately, a federal right-of-publicity law would complement federal trademark protection under the Lanham Act by giving individuals a more effective and nationwide means of protecting the commercial value of their NIL in the AI era.

Trademark Applications for NIL Likely to Increase

The intersection of trademark law and right-of-publicity protection appears less like a passing fad and more like an emerging long-term trend. As AI makes it easier to imitate a celebrity’s NIL, more artists, celebrities and brands are likely to look to trademark law and the right of publicity as practical tools to protect the commercial value of their identities. High-profile examples like McConaughey and Swift suggest that this strategy is gaining traction, and it would not be surprising to see more celebrities follow suit. As concerns over AI-generated deepfakes and unauthorized digital reproductions continue to grow, a federal right-of-publicity law addressing joint right-of-publicity and trademark protection would provide a more coherent and effective means of protecting commercially valuable identity rights.