Sanjana Pai

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.

Even in its relatively nascent form, artificial intelligence, or AI, is already running headlong into multiple conflicts with existing copyright law. One or the other is going to have to blink, to change and adapt, and it’s not going to be AI. One of the existing conflicts is whether AI can be an author for the purposes of copyright law. The U.S. Copyright Office and relevant court decisions have taken a clear position: Any content created solely by AI is not copyrightable; human participation is required. A person may use AI as a tool to assist in the creative process so long as the person’s contribution is substantial and sufficient to meet the requirements for copyright. While the bar for a person’s contribution is generally a very low one for most copyrightable work, the scope of contribution in connection with AI-generated works remains an unresolved issue. Some cases do discuss a standard, and most agree it is a circumstantial analysis that will vary by the specific facts. The issue, while novel in its application, is not new, but the conflict between the law and technology has never been as staggeringly important or the chasm as large as it is today. Copyright Office Clarifies Its Practices for AI-Generated Work The Copyright Office issued a statement of policy on March 16, 2023, to clarify its practices for examining and registering works that contain material generated by the use of AI technology (37 CFR Part 202). This statement was prompted by the Copyright Office receiving registration applications naming AI technology as the author or co-author or involving AI-produced or AI-assisted content. The statement clarified that only content created by a human can be the subject of a copyright. As the agency overseeing the copyright registration system, the Office has extensive experience in evaluating works submitted for registration that contain human authorship combined with uncopyrightable material, including material generated by or with the assistance of technology. It begins by asking “whether the 'work' is basically one of human authorship, with the computer [or other device] merely being an assisting instrument, or whether the traditional elements of authorship in the work (literary, artistic, or musical expression or elements of selection, arrangement, etc.) were actually conceived and executed not by man but by a machine.”  In the case of works containing AI-generated material, the Office will consider whether the AI contributions are the result of “mechanical reproduction” or instead of an author's “own original mental conception, to which [the author] gave visible form.”  The answer will depend on the circumstances, particularly how the AI tool operates and how it was used to create the final work. This is necessarily a case-by-case inquiry (37 CFR Part 202) (footnotes omitted). Supreme Court Rules Copyrightable Works Need Human Authorship As far back as 1884, the U.S. Supreme Court weighed in on the issue of the need for human authorship in copyrightable works. The issue was whether using a camera to take a photo meant that the work was not created by a person and therefore not copyrightable. In Burrow-Giles Lithographic v. Sarony, 111 U.S. 53 (1884), a defendant who had made unauthorized copies of a photograph argued that photographs were not copyrightable because the image at issue was created by a camera and not by a person. The court disagreed, finding that the Copyright Clause of the U.S. Constitution permitted photographs to be copyrightable “so far as they are representatives of original intellectual conceptions of the author.” The court defined “author” as the person “to whom anything owes its origin; originator; maker; one who completes a work of science or literature.” The decision repeatedly refers to such “authors” as humans. D.C. Circuit Affirms AI Cannot Be Sole Author for Copyright Protection Fast-forward 140 years and the holding still stands, but now the issue is whether a work created by AI can be the subject of copyright. Stephen Thaler, a computer scientist, developed a generative AI system called the Device for the Autonomous Bootstrapping of Unified Sentience (DABUS), also known as the “Creativity Machine.” He used his Creativity Machine to create a graphic image called “A Recent Entrance to Paradise,” which he then sought to register with the Copyright Office. In the registration application, he identified the Creativity Machine as the author of the work. The Copyright Office rejected the application because the image was not created by a human being. The U.S. District Court for the District of Columbia upheld the denial,  and Thaler appealed.  In Thaler v. Perlmutter, 687 F. Supp. 3d 140, 142 (D.D.C. 2023), the U.S. Court of Appeals for the D.C. Circuit on March 18 affirmed the district court’s refusal to allow registration, ruling in a unanimous decision that, consistent with Burrow-Giles, human authorship is a statutory requirement for registration. The court clarified, among other things, that: (1) while the human authorship requirement does not fully prohibit copyright protection to works made by or with AI assistance, entirely autonomous authorship in the principal case is not copyrightable; and (2) whether a work made with AI can be registered depends on the specific situation, particularly how the AI tool operates and how much it was used to create the final work. For works created with authorship by both humans and AI technology, the Copyright Office, aligned with its 2023 statement of policy, has allowed certain elements of artistic works to have copyright protection, while leaving other elements unprotected. For example, in reviewing a registration application for a graphic novel containing human-authored texts with AI-generated images, the Copyright Office determined that the combined work of both human and AI constituted copyrightable work; however, the individual AI-generated images themselves could not be protected. (“Zarya of the Dawn” (Registration # VAu001480196) (2023).) More Guidance Needed on Scope of Human Involvement Required for Copyrightable Works In general, a string of recent rulings from the Copyright Office concerning AI–human works have allowed copyright registration as to the human-created portions of such works. This makes sense for a number of policy reasons and is consistent with existing precedent. Copyright law is intended to benefit the public by incentivizing authors; it is not meant, ultimately, to benefit authors. However, as AI tools become ever more ingrained in the day-to-day world of creators, it is likely that the line between human and AI creations will become ever more blurred. While the Copyright Office has already issued guidance that prompts alone do not constitute sufficient human involvement or input to render the AI-generated output a copyrightable work, the scope of human involvement that is required remains unresolved. AI is clearly a machine that intervenes between a human and a creation, like a camera, but unlike a camera, more sophisticated and nuanced guidance is going to be required for future copyright analyses.

Small businesses face several challenges when it comes to growth and expansion. A common issue is securing financing to support business growth, such as funding startup costs, operating costs, real estate purchases and the myriad of expenses incurred in running a business. A loan through the U.S. Small Business Administration (SBA) is one option for overcoming this hurdle. Understanding SBA Loans The SBA, founded in 1953, is an independent agency of the federal government dedicated to supporting small businesses nationally. Among its priorities is assisting both new and established businesses by facilitating access to funding. The SBA collaborates with a network of approved lenders to increase loan availability for small businesses or, in times of need, serves as a direct lender itself. Small businesses often do not have the credit profile necessary to qualify for the loan that they require. To mitigate lender risk, the SBA partially guarantees SBA loans in certain circumstances, encouraging lenders to lend more readily to small businesses. To further manage its own risk, the SBA may mandate an unconditional personal guarantee from individuals or entities holding at least 20% ownership in the borrower, which holds these individuals or entities personally liable for repaying the loan if the business fails to meet its payment obligations. The SBA offers a variety of loan programs to support numerous kinds of small businesses and their needs: 7(a) Loan Program: The 7(a) loan program is the SBA’s most widely utilized and versatile offering. It provides loan guarantees to lenders, enabling them to extend financial assistance to businesses with diverse needs. These loans can be used for several purposes, including acquiring, refinancing or improving real estate and buildings, as well as providing both short- and long-term working capital. Typically, 7(a) loans range from $500,000 to $5 million, with terms extending up to 10 years with flexible collateral options. The 7(a) loan program is designed for longer-term financing and is appropriate for businesses with a net worth below $15 million and an average net income under $5 million. Loan amounts can go up to $5 million, and borrowers have the option of choosing between fixed or variable interest rates. The SBA offers several types of 7(a) loans tailored to different business requirements. For instance, the 7(a) small loan is a term loan, rather than a revolving loan, of $500,000 or less, while the SBA Express option allows lenders to follow their procedures in exchange for a lower SBA guaranty percentage. 504 Loan Program: The 504 loan program provides long-term, fixed-rate financing designed to support small businesses in acquiring major fixed assets such as real estate and equipment. These loans are facilitated through certified development companies (CDCs), which are nonprofit organizations certified and regulated by the SBA to promote economic development within their communities. The typical structure of a 504 loan involves three key components: a contribution from the borrower, a loan from a private sector lender, and funding from a CDC. Specifically, the borrower is required to provide at least 10% equity, while the private lender finances 50% of the project costs. The CDC covers up to 40% of the total financing through an SBA-backed debenture. This arrangement allows businesses to secure up to $5 million in funding or $5.5 million for eligible manufacturing or energy-efficient projects. 504 loans are particularly beneficial for small business owners who may not qualify for conventional financing. They offer lower repayment options and fixed interest rates, making them an attractive choice for those looking to preserve cash flow while investing in their business growth. Additionally, these loans cannot be used for working capital, ensuring that the funds are directed toward tangible assets that promote job creation and economic development. Economic Injury Disaster Loan (EIDL): SBA loan programs have also been altered to suit the needs of small businesses during periods of disaster and crisis. Through the EIDL program, small businesses, small agricultural cooperatives and private nonprofit organizations that are located in “disaster areas” as declared by the SBA and that have suffered substantial economic injury are potentially eligible for SBA relief. Eligibility for the EIDL program further requires a showing that the small business was directly impacted by the disaster, unable to meet its financial obligations and pay necessary expenses due to the disaster and/or debt payments, and unable to obtain credit elsewhere. EIDL proceeds are meant to help organizations recover from the economic impacts of the disaster. They cannot be used for expanding facilities, buying fixed assets, repairing physical damages, refinancing debt, paying out dividends or bonuses, or paying back loans to stockholders or principals. EIDL funds are to be used for working capital and other common operating expenses. These loans are not forgivable and must be repaid; however, the repayment requirements depend on the size of the loan. Benefits of SBA Loans For Borrowers: SBA loans provide numerous advantages for borrowers, accommodating a wide range of business needs. First, these loans feature broad eligibility requirements, allowing a diverse array of businesses to qualify. Businesses must be registered, legal, for-profit entities operating in the United States or its territories, possess sound credit and a reasonable ability to repay the loan, and demonstrate an inability to secure funding from other financial institutions. Some loans may impose size standards, and individual lenders may have additional requirements based on industry-specific factors such as annual revenue or employee count. However, as a general matter, small businesses can secure eligibility for SBA loans with relative ease. Another key benefit is the competitive terms offered by SBA loans, which is their ability to provide lower interest rates and flexible repayment terms, as compared to those of non-guaranteed loans. SBA loans also provide lower down payment and repayment requirements that help preserve cash flow and flexible overhead requirements that accommodate various business situations. In some instances, no collateral is needed, further reducing barriers to funding. Additionally, repayment terms are longer than those of traditional loans, extending up to 10 or even 25 years in some cases. For loans with terms under 15 years, there are no prepayment penalties, allowing businesses to retain cash for growth or other needs. For Lenders: As SBA-certified lenders, lenders will be able to issue small business loans backed by a federal guaranty. This significantly reduces the risk associated with lending, as compared to traditional loans. The SBA’s guaranty helps ensure that the loans will be repaid. This assurance also enables lenders to extend credit to businesses that might otherwise be considered too risky, thereby broadening their customer base. Realizing Potential with SBA Loans The variety of loan programs established by the SBA offer competitive terms and flexible repayment options. These loans can be crucial resources for small businesses, providing access to the financing needed to grow and allowing them to reach their full potential.