by Dennis Crouch
Intellectual property rights in the U.S. have long been a mix of state common law rights and federal statutory rights. Patents and copyrights were established in the Constitution and enacted by the First Congress in 1790. Those rights were fairly quickly established as exclusively federal, meaning that there is effectively no patents or copyrights offered by individual states. Trademarks and trade secrets followed a different path – developing under state common law before later later gaining federal protections; with trade secrets moving federal most recently via the Defend Trade Secrets Act (DTSA) of 2016. Unlike patent and copyright, trademarks and trade secrets continue to be concurrent and overlapping, meaning that state rights continue to exist and be enforceable alongside the federal right. It is common for litigation to assert both. With trademark law, the federal right has been around since 1870 and today occupies most of the space. Because the federal trade secrecy right is so new (and no registration is available), it is still unclear whether we’ll see the same result.
The straggler here is the right of publicity, often termed Name Image & Likeness or NIL rights. Although publicity rights initially emerged as a privacy interest, I find that students are quick to see its kinship to trademark law and unfair competition. While typical privacy rights focus on personal interests and one’s peace of mind, the right of publicity is more economic and commercial in nature. The basic idea here is that a person’s reputation is an asset — commercial goodwill. And, that person’s brand is their name, image, and likeness.
The growth of the internet and influencer culture has raised the awareness and importance of publicity rights as the a key transferable with endorsement deals and celebrity advertising. In the background, we also have the emergence of deep fake AI tools that allow digital impersonation of celebrities at a level never experienced (as exemplified by my AI created version of Swift above).
In a recent hearing on AI IP issues before the US Senate IP subcommittee, Adobe proposed creating a new federal right of publicity called the Federal Anti-Impersonation Right (FAIR). This would establish a minimum level of protection against the unauthorized commercial use of a person’s name, image, likeness, or other identifying aspects of their persona. Adobe argued this is needed to protect artists and creators from having their style or likeness copied by AI tools and used by others for commercial gain. A national right of publicity could provide more consistent protections similar to those created for trademarks and trade secrets. It could also facilitate enforcement across state lines and could eventually serve as the basis for international treaties in this increasingly global space where persona rights are often exploited online and across multiple platforms.
Adobe’s proposal is largely in theory, and the terms have not yet been drawn-up. Obviously, key policy questions remain:
- Should protections apply only to famous personalities or to anyone whose NIL is used for commercial gain?
- How should we balance free speech, parody, and fair use concerns?
- To what extent should online platforms be shielded from liability?
- Should rights vest only for commercial exploitation or is there a privacy interest to protect?
The origins of publicity rights stem from privacy protections rather than commerce. This conceptual difference from trademark law is important, and I would suggest that any federal right should consider personal dignity and reputational interests, not just economic harms from impersonation.
What do you think? Are you ready for a national right of publicity?
>Should rights vest only for commercial exploitation or is there a privacy interest to protect?
The later…I’m not sure why there is any logical/moral reason to limit the cause-of-action to famous personalities (i.e., other than to shoe-horn the law into the commerce clause). If anything, I’d probably say that famous personalities should have a slightly *higher* burden-of-proof precisely to protect free speech, parody, and fair use (e.g., a deep-fake of a non-famous person is presumed to be done for malicious purposes).
The famous person / commercial gain fact pattern will, of course, have an easier time proving actual damages.
>To what extent should online platforms be shielded from liability?
DMCA-style notice-and-takedown safeharbor only. Blanket CDA-style protections have been, err, problematic.
A federal right, maybe, agreed as between sovereign states similar to other federal laws (e.g., patent law). I suppose there may be support for this in the Commerce Clause.
A national right – no. Let’s not move any closer to a unitary nation.
Sounds like six of one, half dozen of the other there, Addy.
My concern about such a national right of publicity statute would be about potential ambiguities and litigation over the definition and scope of “other identifying aspects of their persona … needed to protect artists and creators from having their style .. copied.” Would that include, for example, being able to sue anyone selling paintings that look like they were made by pouring streams of paint out of paint buckets like the famous Jackson “Potluck”? Who would be able to legally determine what are actionable “identifying aspects” of such alleged infringement? An art expert, or any lay observer?
[Another design patent quagmire?]
Is “style” something that should be protected from being copied?
I ask in the sense that we all stand on the shoulders of giants that went before us, as well as the adage of ‘there is nothing new under the sun’ (which seems more apt for something as ephemeral as “style”).
>style
Thomas Friedman will finally get revenge on all those “simulator” websites that mock his writing style.
Yes, I thought the same thing. A name or actual likeness is pretty clear. A “style” is very vague.
This is not unprecedented, though.
In White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1992)
link to law.justia.com.
There, Vanna White sued on a right of publicity theory, against an advertisement that featured a The ad depicted a robot, dressed in a wig, gown, and jewelry which the creator consciously selected to resemble White’s hair and dress. The robot was posed next to a game board which is instantly recognizable as the Wheel of Fortune game show set.
In a 2-1 decision, the 9th Circuit held this could infringe her right of publicity.
What do you think? Are you ready for a national right of publicity?
Sure, whatever. Mostly I think that you achieve some quite striking results with that AI drawing app of which you have lately grown so fond.
No kidding that china is not a tech powerhouse. Derp, anyone could tell you that. Surprise, 5 decades of leftism isn’t tech friendly. Wowie-zowie. More news will be delivered at 11. Etc. etc.
Zeihan’s podcasts have easily been roughest on the current state of China.
Given that nature abhors a vacuum, I am curious as to what happens after the China implosion.
^^^ and that IS the 411
Naturally I agree that communism is not a great tech policy, so I am not surprised that we are still way ahead of China when one measures correctly. There are, however, a lot of people around these parts who (rather crazily) believe that recent trends in patent law here and in China have given rise to a situation in which China is eating our lunch. It is useful to recalibrate such beliefs to actual data.
Greg be funny (yet again), as his “call for calibration” includes [in one direction] a notice from a self-identified pro say person (China stealing our IP or otherwise making it a more-friendly filing location [which in fact does mirror an historical track]), AND [in the opposite direction], Night Writer and I discussing a possible bottom falling out if or when China pulls back from filing applications.
Greg just cannot seem to get anything right.
That’s great. But do you agree that muh equality/equity in the social sphere is not a great muh policy in practice? Recent vid making the rounds showing how “muh equality” works in the tech sphere social media and dating apps style.
link to youtube.com
Lol – talk about your negative feedback loops…
[D]o you agree…?
I have no idea. I believe that it is a speaker’s duty to make a point clearly, and that one should not expect the reader to have to work to parse it. The pidgin gibberish means nothing to me, and I am not inclined to do the work to translate it into real English. It is possible that I agree with your assertion, and possible that I do not, but I really cannot say until you put it in a language that I understand (English by preference, although I also read French and Portuguese).
“ I believe that it is a speaker’s duty to make a point clearly, and that one should not expect the reader to have to work to parse it”
Says the guy who insists on his hidden ‘virtue signaling’….
“but I really cannot say until you put it in a language that I understand (English by preference, although I also read French and Portuguese).
The unmitigated EGO… ( a sure sign of nothing more than the height of his Mount S)
I will simply choose to believe that greg is just too old to understand modern english.
Greg dude, just take the muh’s out if they’re too advanced of lingo for you old timer.
Meh, it’s not “age” per se for Greg (and his rigid inabilities), but rather it is his personal elitism.
One merely has to track his copious hidden signaling to appreciate this.
“Recent vid making the rounds”
LOL
Very serious stuff. Heckuva job, MBHB.
Given your own proclivities, you mocking MBHB is beyond ironic, Malcolm.
¯\_(ツ)_/¯
MM is jealous his latest glam fashion youtube vid only got 15 views instead of 2 milly.
Does that number count his own dozen “I’m just checking” views?
Correct. Because its been all LEFT wing over here since Reagan, and the Communist Party of China is extremely RIGHT wing.
Wait, what?
“What do you think?”
With Congress’ reputation for coming up with wonderful legislation for even the most difficult and intransigent of (alleged) “problems” (see, e.g. the AIA), there’s no reason for anyone to be concerned.
No reason at all.
Adobe’s (written)* comments:
link to judiciary.senate.gov
** I missed the live event.
The Framers never contemplated most of this so any law which doesn’t further empower rich white Christian men is probably unconstitutional.
That said, if I am walking in Times Square and somebody takes a video and I appear in the video for more than five seconds and the video is posted to YouTube I should have standing to sue YouTube for damages AND easily obtain an injunction to shut them down until the video is removed and all copies of it are traced and deleted. Anything less than that violates my fundamental right to solely control my “image” and its reproduction.
Feel free if leave this country that you apparently abhor.
And please don’t let the door hit your arse on your way out.
Priceless:
Even the idea that anyone would want to video Malcontent for even ONE second (let alone 5+) . . . gave me my hearty IP-chuckle for the day.
LOL
Nothing funnier than these naive bumpkins babbling in the heat.
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