Can Companies Use My Likeness for AI Applications?

You have a likeness rights case against a company if your likeness was used in AI applications without your permission. Common law right of privacy in your likeness protects against identity misappropriation, and a right of attribution for your likeness. State and federal laws, including the ELVIS Act and proposed NO FAKES Act, protect against the use of AI deepfake technology, voice mimicry, and digital replicas. You can recover statutory damages in a civil liability claim for unauthorized commercialization. However, a phone app or program may have a consent agreement to use your voice, video, and images for AI.

For personalized legal advice, reach out to a lawyer who’s experienced in technology and intellectual property issues.

Applying Existing Laws to AI-Generated Content

Existing state and federal laws have very little to say specifically about artificial intelligence technology. Instead, there is a patchwork of statutes and common-law frameworks that could, in theory, be used to protect people whose likenesses have been used to generate AI content without their permission.

The Right of Publicity Under State Law

The legal framework that likely offers the best protection in this area is the right of publicity, which prohibits the use of a person’s name, image, voice, or other distinct likeness without permission, especially for profit.

In some states, publicity rights are a matter of common law, developed over many years through court decisions. In others, there are specific statutes providing a right of publicity. This can be a privacy right or a property right, depending on the state. There is no federal right of publicity, so it is purely a matter of state law.

In the case of AI-generated content, violation of the right of publicity could involve using an AI simulation of someone’s likeness in:

• Advertising materials
• A movie or video game sold to consumers
• Social media posts that generate clicks to a website that earns revenue through advertising or sales

So far, there have been relatively few cases applying the right of publicity to AI-generated content. One prominent case is Lehrman v. Lovo Inc., in which two voiceover actors sued an AI voice generator company for creating AI-generated characters based on their voices without their permission.

The plaintiffs in Lehrman asserted a wide range of federal and state legal theories, and the U.S. District Court for the Southern District of New York identified the right of publicity under the New York Civil Rights Law as one of the stronger claims.

Other State Laws Affecting AI Use of Someone’s Likeness

Depending on how a company acquired someone’s image, voice, or likeness, and how exactly the company used their likeness in an AI application, plaintiffs could bring claims under a variety of other state laws, including:

• Consumer protection laws
• Contract laws
• Tort claims such as fraud, misappropriation, and unjust enrichment.

Since artificial intelligence technology is a new and novel area, courts may be unsure of how to apply these laws to cases involving AI-generated images and content.

States That Have Passed Laws Regulating AI-Generated Likenesses

Some states, especially those with large entertainment industries, have started to address the issue of AI using people’s likeness by passing new laws with AI in mind. For instance:

• California has adopted laws making certain contracts unenforceable when applied to digital voice and likeness replicas of an individual and prohibiting digital replicas of deceased individuals without permission from their estates.
• Illinois has adopted the Digital Voice and Likeness Protection Act, which makes certain contracts enforceable, protecting people’s digital likenesses from being used without their clear understanding and agreement.
• Tennessee has adopted the Ensuring Likeness Voice and Image Security Act (ELVIS Act), which explicitly adds voice to existing state-law likeness protections and clarifies how those protections apply to AI-generated images and sound recordings.

Federal Intellectual Property Laws

In the federal realm, intellectual property law is the main avenue for people seeking to protect their likeness rights. That being said, much uncertainty exists about how the courts will apply IP law in the largely unsettled territory of AI replicas and deepfakes.

AI Copyright Infringement Claims

Copyright law protects images, videos, and voice recordings that people have created from unauthorized duplication. However, when those recordings are used to train a generative AI system that creates derivative work based on them, it is unclear whether copyright law still applies.

In the Lehrman case referenced above, the court allowed the plaintiffs to proceed with copyright infringement claims for the direct use of their voice recordings by the defendant, but not for the use of their recordings to train an AI model.

AI Trademark Infringement Claims

Trademark is a separate legal concept that protects symbols, designs, specific sounds, and other marks that identify a product or service. In the area of AI replicas, trademark law may offer some protection to a celebrity or other public figure with distinctive voice, appearance, or pose.

For instance, actor Matthew McConaughey has filed for eight trademarks on some of his most well-known movie clips, including the audio of him saying “alright, alright, alright” from the 1993 film “Dazed and Confused.” McConaughey specifically took this action to protect his likeness from unauthorized use by AI models, though this theory has not been tested in court.

In the Lehrman case, the court dismissed the plaintiffs’ trademark infringement claims, saying their voice recordings were not used to identify the source of a product but were, themselves, the product. But to the extent that distinctive recordings of a celebrity like McConaughey might identify him (falsely) as the source of a product, he might expect to have better luck with a trademark infringement claim.

The Future of AI Likeness Rights

Many in the creative and technology industries have called for consistent federal legislation establishing privacy and intellectual property rights in a person’s likeness to protect against unauthorized processing of that likeness by AI tools.

Currently, the primary legislative effort is the Nurture Originals, Foster Art, and Keep Entertainment Safe Act (NO FAKES Act). This legislation has support from a wide range of stakeholders, including:

• Entertainment unions and industry groups like SAG-AFTRA, the Recording Industry Association of America, the Motion Picture Association, and the Recording Academy
• Artificial intelligence and technology companies like OpenAI, IBM, and Vermillio

Congress has not yet passed the NO FAKES Act, and will likely amend the legislation. The timeline for moving the bill forward is unclear. If adopted, it would not necessarily preempt all applicable state laws. And it is likely that several additional states will pass laws specifically governing AI replicas.

Getting Legal Help To Protect Your Likeness from AI Replication

Where does this leave people who are concerned about how AI could use their likeness to generate a deepfake or replica for commercial use? The future is uncertain, but people can at least start to protect themselves by carefully reviewing contracts and terms of service before distributing any images or recordings of themselves on any digital platforms.

Ultimately, anyone who feels that AI has misused their likeness should consult a lawyer as soon as possible to discuss options for potential legal action.