February 05, 2020 Feature

Virtual Influencers: Stretching the Boundaries of Intellectual Property Governing Digital Creations

Sonia M. Okolie

©2020. Published in Landslide, Vol. 12, No. 3, January/February 2020, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

The recent surge of social media has given rise to influencer marketing and the ubiquity of social media influencers (i.e., individuals thought to affect others’ purchasing decisions via their specialized knowledge and/or preexisting relationship with a relevant audience).1 Depending on their follower count, content format, and social media platform, a single influencer may command the attention of millions.2 Recently, however, some brands have begun employing virtual influencers—computer-generated personalities designed to promote their products and services.3 This new wave of influencer marketing raises a host of legal issues. This article will explore the mechanics, purpose, and impact of virtual influencers. It will then consider right of publicity issues inherent in attempting to protect the likeness of nonhuman characters in a virtual environment and survey related copyright issues. This examination of the world of virtual influencers reveals there are ripe legal considerations lying just below the surface.

What Is a Virtual Influencer?

A virtual influencer is a digital image “with a great mass of social media followers that . . . [is] being used by brands to do the work of what a human influencer would do,” including “attending fashion shows, shoot[ing] campaigns, mak[ing] sponsored posts, etc.”4 These computer-generated characters are being created by brands and being used to attract followers and sales. Virtual influencers function much as traditional social media influencers do, with the added incentive of customized marketing. After all, some have posited, “[w]hy hire a celebrity, a supermodel or even a social media influencer to market your product when you can create the ideal brand ambassador from scratch?”5 These avatars are instantly available, photo-ready, and, depending on their creators, may be exclusively utilized by particular brands. This eliminates concerns about brand ambassadorship competition, since some virtual models are created for sole use by one company.

The earliest identified use of the virtual influencer is Miquela Sousa, or Lil Miquela, introduced to Instagram in April 2016.6 The Brazilian-American digital model has since amassed a follower count upwards of 1.8 million people7 and has worked with companies such as Calvin Klein, Dior, Prada, Tommy Hilfiger, and Samsung.8 She is also portrayed as a musical artist, whose song “Not Mine” has nearly two million plays on Spotify.9 The fast-food chain KFC recently introduced a new iteration of Colonel Sanders on social media, a virtual model.10 Gone is the elderly, Southern gentleman of the old marketing campaign. In his place stands a reimagined, refined Colonel Sanders with tattoos and six-pack abs. Lastly, consider Shudu Gram, the world’s first digital supermodel, who made her debut on Instagram in mid-2017.11 Shudu’s follower count rose “after the managers of the Instagram for Rihanna’s Fenty Beauty line apparently mistook her for a real customer.”12 Apparently, the graphic design Shudu’s creator employs effectively portrays an extremely realistic model.

Importantly, virtual influencers are not quite artificial intelligence (AI). As discussed in this context, digital avatars are, generally speaking, computer-generated images. However, some “‘huge advancements’ in neural networks began allowing computers to create ‘almost indistinguishable’ lifelike models.”13 Some experts in the field predict “a near future where virtual creators require no human involvement whatsoever. Everything would be completely computer generated, from the images they post to the captions that go along with them. Machine learning technologies would then allow those creators to interact with people on Instagram and Twitter.”14 Thus, although the technology being used for digital models is not associated with AI, algorithms and neural networks may soon be used to elevate the virtual influencer experience to a whole new level.

The Benefits and Drawbacks of Virtual Influencers

Virtual influencers may sometimes be more attractive to brands than human influencers or models. Virtual influencers also come with less formal regulation than human influencers. The Federal Trade Commission (FTC) requires influencers to disclose when they are being paid to endorse products or services on social media.15 However, it is unclear if these guidelines apply to nonhuman influencers as well. The companies controlling virtual influencers are not required to disclose that they are purely digital and nonhuman. It is interesting to consider what difference, if any, it would make if brands were required to disclose that a particular model being used in an advertisement were nonhuman or, similarly, if virtual influencers had to prominently display on their social medial profiles or even each social media post that they are nonhuman. It may negatively impact consumer opinion if this information were required to be disclosed, thereby lifting the veil of mystery behind the virtual model’s perfectly smooth façade and revealing a thorough plan to target and ensnare unsuspecting consumers.

The FTC noted that it “hasn’t yet specifically addressed the use of virtual influencers,” but brands using virtual influencers should make sure that “any claims communicated about the product are truthful, not misleading and substantiated.”16 Therefore, the bare minimum required of a social media post by a virtual influencer is honesty regarding the product or service being endorsed.17 The FTC does also require endorsers to disclose connections to brands or companies that may be material.18 Therefore, brands that not only choose to employ virtual influencers but also own and create the influencer’s posts are required to disclose that they have that material connection. Otherwise, consumers may not necessarily be aware that a particular company owns and operates a virtual influencer’s social media presence. As virtual influencers become more ubiquitous, it will prove necessary to monitor FTC guidelines for their use of endorsements.

Since virtual influencers are largely controlled by a creator or company, the social media presence is a cleaner and more curated one. Brands may have significantly fewer concerns with virtual influencers than their human counterparts when it comes to public relation risks, unplanned incidents, or scandals that may affect the scale and/or opinion of the relevant customer base.19 Indeed, the brand controls the virtual influencer and its social media feed, so it therefore controls the message communicated to the public. In contrast, human social media influencers disclose their opinion on a given product or service.20 When the influencer is literally being given life by a brand, one cannot expect the opinion provided to be anything negative or unbiased.

Lastly, it is important to consider the economic consequences associated with the use of virtual influencers over human influencers. At this point, although virtual influencers are gaining momentum, they are not nearly as popular of a choice as human influencers. The costs associated with creating a virtual model are rather high, and some brands cannot afford to resort to using them.21 That said, virtual influencers do pose a unique threat to human influencers. When a brand chooses a virtual influencer, it comes with a price—it takes with it a job opportunity from the human influencer. With such a crowded industry and millions of potential human influencers and models available at a given moment, a brand’s choice to use a digital influencer would surely take an advertising opportunity away from a person who may need or deserve it more. Consider also Cameron-James Wilson, the creator of famous digital model Shudu. He received strong criticism for designing a computer-generated model of color, thereby taking work away from human models of color.22 Using virtual models spares brands and companies from actually hiring diverse women in an already competitive industry—it is “a way to work with black women without ‘working with’ black women.”23 Not only do minority models and influencers have to compete with nonminority models and influencers, but they now also have to compete with minority and nonminority digital models and influencers, which increases pressure and tension in the competition for brand sponsorship.

Right of Publicity for Virtual Influencers

It is interesting to consider what rights may or may not be afforded to these virtual influencers, given their popularity and distinctiveness, especially whether the right of publicity would apply. The right of publicity is generally described as the right of individuals, most often celebrities, to protect, control, and profit from their name or likeness.24 It has its roots in the right of privacy; Professor William Prosser divided the right of privacy into four different torts: (1) intrusion; (2) disclosure; (3) false light; and (4) appropriation, the forerunner for the right of publicity explored here.25

The elements of a right of publicity claim are: (1) whether the plaintiff owns or licenses the recognizable identity; (2) whether the identity was used by the defendant in a commercial setting; (3) whether the plaintiff authorized the use; and (4) whether the defendant’s unauthorized appropriation caused the plaintiff any economic harm.26 In general, the right of publicity applies to natural persons, with the exception of corporations, partnerships, and other types of business organizations.27 Courts treat the right of publicity as a property right like any other.28 It can be transferred by license or assignment and is descendible.29

The relevant question then is whether a virtual influencer may be eligible for such a right even though it is not an actual person. The right of publicity is protected by state common law in 29 states, statutory law, or both, depending on the jurisdiction. Celebrities frequently rely on this right when others infringe upon their name, reputation, likeness, or achievements.30 Considering the millions of followers virtual influencers like Lil Miquela and Shudu have, they very well may be considered celebrities in their own right. Does it matter that they are nonhuman celebrities?

One relevant case for consideration is White v. Samsung Electronics America, Inc., wherein a nonhuman robot was found to be a sufficient likeness to Vanna White to support a right of publicity claim.31 White sued Samsung for an advertisement featuring a robot wearing a blonde wig and formal gown, standing on a game show stage similar to that of Wheel of Fortune.32 White neither provided her consent nor was paid for the advertisement. The court rejected the defendant’s parody defense and found that a nonhuman entity could infringe a human’s right of publicity since Samsung used the robot to appropriate White’s likeness.33 The court did make a point of noting that the robot used in the Samsung commercial had mechanical features, although dressed in a blonde wig and red gown and jewelry. The robot was “not, for example, a manikin molded to White’s precise features.”34 It would be easier to confirm the robot was using White’s likeness if it had more human-looking features. Since the virtual influencers explored here have highly realistic features and near-human appearances, it would likely be much easier to compare the likeness of a human and a virtual influencer for these purposes.

Another case that is pertinent to this inquiry is Wendt v. Host International, Inc.35 Defendant Host was the licensee of the copyright for the television program Cheers, and despite objections by plaintiffs George Wendt and John Ratzenberger, former actors of Cheers, Host placed robots that allegedly resembled the actors in airport bars modeled after the bar in the Cheers set.36 The district court dismissed the plaintiffs’ claim on the grounds that the robots only resembled actors Wendt and Ratzenberger in terms of their body type: one was slight, the other was heavy. Other than that, the facial features of the robots were “totally different” from those of the actors.37 The Ninth Circuit held that there was an issue of material fact whether Host’s robots actually resembled Wendt and Ratzenberger enough to merit a cause of action.38 The court indicated that there could be a finding in favor of the plaintiffs if the jury found that Host commercially exploited the actors’ identities to make a profit.

These cases beg the question of whether a court could ever find the opposite. Could courts one day find that a human infringed upon a nonhuman avatar’s right of publicity? For now, this question remains unanswered, but it is not hard to imagine an illegal use of a virtual influencer’s fame to endorse a product for which the virtual influencer’s owner/creator has given no such permission. In such a situation, a creative lawyer may want to try to bring a right of publicity claim, in addition to a possible trademark infringement claim, if the use created a likelihood of confusion as to sponsorship or affiliation. It is well established that “[a]dvertisers use celebrities to promote their products. The more popular the celebrity, the greater the number of people who recognize her, and the greater the visibility for the product.”39 Thus, it is possible the “identities of the most popular celebrities are not only the most attractive for advertisers, but also the easiest to evoke without resorting to obvious means such as name, likeness, or voice.”40 This suggests that more popular virtual influencers who have strong followings and identifiable personalities and identities may have a better chance at a right of publicity claim, at least compared to lesser-known virtual influencers. Of course, if the improper use is nationwide, the attorney would consider which state has the most favorable, or perhaps least developed, statutory or common law to advance a novel theory to try to convince the court to recognize a right of publicity for a “digital” person.

Copyright Protection for Virtual Influencers

The issues regarding copyright protection and how it relates to virtual influencers are twofold. On one hand, there is the question of to whom the photographs and other digital content, including the influencer, belong; and on the other hand, there is the question of who owns any content supposedly created by the influencer.

Who Owns the Copyright on the Virtual Influencer?

The first copyright issue regarding who owns the rights to the virtual influencer seems relatively straightforward. The author is generally the person who conceives of the copyrightable expression and fixes it, or causes it to be fixed, in a tangible form.41 Copyright protection “vests initially in the author or authors of the work. The authors of a joint work are co-owners of copyright in the work.”42 Thus, the graphic designer, software developer, and anyone else who helped create the digital avatar could be considered the authors thereof. When the virtual influencer is owned and/or operated by an individual brand or company, it may be considered the author as a work for hire.

Although the list of copyrightable subject matter in the Copyright Act does not include fictional characters, this may be the closest analogy to virtual models.43 Several courts have granted copyright protection to fictional characters separate from the larger copyrighted work in which they appear.44 There are two primary tests for determining whether characters merit copyright protection. In the “well-delineated test,” the significant factor is the distinctiveness of the character. Stock characters may be copied freely as they are not sufficiently developed. “[T]he less developed the characters, the less they can be copyrighted; that is the penalty an author must bear for marking them too indistinctly.”45 The “story being told test” posits that fictional characters are only copyrightable if they “constitute[] the story being told,” and are not simply “the chessman in the game of telling the story.”46 Therefore, provided that the name, likeness, and personality traits are distinctly described, they may well be eligible for copyright protection.

There have even been situations in which nonhuman fictional characters have received copyright protection, strengthening the possibility of virtual influencers receiving the same. In DC Comics v. Towle, defendant Towle created replicas of the Batmobile exactly how it appears in the Batman television program and motion pictures to use for his business at Gotham Garage, where he manufactured and sold replicas of well-known automobiles from entertainment creations.47 Towle admitted he copied the Batmobile designs for his replicas, sold kits allowing customers to make modifications to their cars to make them look like the Batmobile, and did not receive permission from DC Comics to create or sell any product relating to the Batmobile.48

However, he claimed noninfringement as a defense, on the basis that the Batmobile was not eligible for copyright protection. The Ninth Circuit applied a three-part test to determine whether the Batmobile was eligible for copyright protection: (1) whether the character generally has “physical as well as conceptual qualities”; (2) whether the character is “sufficiently delineated” to be recognized as the same character when it appears; and (3) whether the character is “especially distinctive” and “contain[s] some unique elements of expression.”49 This clearly imbues the spirit of the “well-delineated test,” as it holds a high standard for granting fictional characters copyright protection if they are not distinctive enough. The court held that the Batmobile is a copyrightable character because it appeared in comic books and in movies and television as a three-dimensional car; because it maintained its general bat-like appearance, despite the various changes it experienced across time and format; and because it contains unique elements of expression and is widely recognizable, making it more than a mere stock character.50

The DC Comics holding is significant to considerations regarding the copyrightability of virtual influencers. If copyright protection may be granted to a famous automobile appearing in comic books, television, and movies, so long as it meets the relevant test, it may also be granted to nonhuman virtual influencers, if it can be proved that they have “physical as well as conceptual qualities,” are “sufficiently delineated,” and “contain some unique elements of expression.”51 Therefore, the scope of what is included within “fictional characters” is not necessarily limited to human fictional characters, and there may be space within the term to make room for virtual influencers, provided they meet the relevant criteria.

Who Owns the Copyright for Works “Made by” the Virtual Influencer?

The second copyright issue is how to designate the copyright owner for the works supposedly being created by virtual influencers. Consider again Lil Miquela, the virtual influencer whose songs have received millions of plays on Spotify.52 Or consider Liam Nikuro, the first Japanese male virtual influencer, announced to be working “in the fields of music, fashion and entertainment, where he will be involved in the production of a wide range of content as a multimedia producer.”53 What happens to the works they are publicized as being the creators of?

One cannot simply conclude that the creator of the virtual influencer is necessarily the creator of the secondary work and, therefore, the owner of the copyright. If the computer-generated model were created by a graphic designer or computer developer, there is no reason one would assume that it is the same person who is also creating music under that model’s name. The producer of the work of music, fashion, or other entertainment may even be several, not singular.

The matter is further complicated when the creator insists on labeling a secondary work as being made by the virtual influencer alone. Take, for example, the single “Not Mine,” released by Lil Miquela. Although the singing sounds auto-tuned, “[t]he single is self-released [and] written by Miquela herself, according to the credits.”54 Consider, then, how the inquiry increases in complexity when there is no such obvious declaration of source. The determination of authorship between the human creator and the virtual influencer, of course, must depend on how one defines the scope of the term “author.” In Burrow-Giles Lithographic Co. v. Sarony, a case regarding the copyrightability of a photograph of Oscar Wilde, the U.S. Supreme Court defined the term “author” as “he to whom anything owes its origin; originator; maker.”55 The scope of “anything” is dangerously broad. Under this analysis, if a song was made by a digital avatar, but the digital avatar was made by a human, the human must be the ultimate author.

This kind of rationale limits the role of the virtual influencer to simply be the instrument, the tool by which the human creates, simply a means to an end. Consider this—if Mary Smith makes a pen and John Doe uses that pen to write a novel, we do not consider the pen to be the author of the novel, nor would we consider Mary, the pen’s creator, to be the author of the novel. This disconnect seems to suggest that it is not necessarily the human who creates the virtual model who is the author of any subsequent work. A similar idea was posited regarding AI algorithms that create paintings: “If the artist is the one that creates the image, then that would be the machine . . . . If the artist is the one that holds the vision and wants to share the message, then that would be us.”56 So the author is the one wielding some creativity in conceiving the work, while AI proceeds to give birth to it.

Similar arguments are made for the developers of algorithms that go on to generate works of art. “Certainly, it was the programmer who invested the time, energy, and creativity to create the AI tool. However, this point of view makes the same false assumptions that some critics have made in arguing against any AI ownership of IP: it assumes that the programmer explicitly programmed the AI with step-by-step instructions [for how to produce the artistic work].”57 This argument does have some merit. However, copyright protection has long been held to not simply be about the “sweat of the brow”—copyright is not intended to protect and reward an author’s hard work, it is intended to protect originality.58

The biggest obstacle to eligibility for copyright protection in the present situation is the limitations of authorship. Under the current copyright regime in the United States, works must be created by a human in order to be registered. The U.S. Copyright Office updated its Compendium in 2017 to explicitly state that “works produced by nature, animals, or plants” are not eligible for copyright protection.59 Relying on the Sarony case, the Compendium asserts that “[t]o qualify as a work of ‘authorship’ a work must be created by a human being,” and “[w]orks that do not satisfy this requirement are not copyrightable.”60

An analogous situation came up in the case Naruto v. Slater, wherein copyright protection was denied for a photograph taken by a monkey because a monkey cannot be considered an author.61 Photographer Slater was in Indonesia to photograph wildlife, when a macaque monkey named Naruto picked up his camera and took several photos of himself. The People for the Ethical Treatment of Animals sued to claim authorship for Naruto, but the court ruled that Naruto could not be an author under current Copyright Office guidelines.62 This certainly alludes to a roadblock to allowing virtual influencers to own copyright protection for works they create.

The potential loophole lies in the exact phrasing in the Compendium—referring to “works produced by nature, animals, or plants.”63 Virtual influencers fall into none of those categories, as they are neither nature, animals, nor plants. While virtual influencers are not humans either, where the human creator and digital influencer jointly contribute to the finished work, perhaps some carve-out could be made here to include works created with human contribution, without having to redefine authorship and without opening the door to animal-, nature-, or plant-made works seeking copyright protection.64 This may open a Pandora’s box that would likely be too difficult to shut.

Another potential solution makes use of the work for hire doctrine under copyright law. Under this doctrine, any works created by an employee are considered owned by the employer, provided that an exclusive agreement exists that stipulates the same.65 The effect here would be significant. The virtual influencer, unless granted personhood and rights that correspond to it, can be assigned the role of the employee and the developer can be assigned the role of the employer. Both the virtual influencer and the human developer put work into creating the final work, so the contributions of both are incorporated into classifying these works as works made for hire.

Other jurisdictions, such as the United Kingdom, Ireland, and New Zealand, have made provisions in their copyright law to protect works “generated by a computer in circumstances such that there is no human author.”66 They do so by utilizing their version of the work for hire doctrine. Therefore, the current copyright system in the United States could similarly be amended to include works made by virtual influencers as a type of work that can be produced under hire or by special commission, vesting ownership in the creator or controlling brand or company. Certainly, it seems not only plausible but advisable to follow such a system as that established in the United Kingdom, Ireland, and New Zealand. This proposed system would likely be the easiest way to grant virtual influencers quasi IP rights without having to grant personhood to virtual influencers or completely redefine the definition and scope of authorship.

Conclusion

The virtual influencer phenomenon, commenced in the past five years, seems poised to continue to grow. Brands and companies will certainly continue utilizing these computer-generated models to advertise and endorse their products and services. While this technology surely incites awe, it also raises several questions regarding the ethical implications and legal rights affected by their use over human social media influencers. As the technological landscape shifts, the legal landscape may have to as well, in order to better delineate clear legal boundaries, including matters of right of publicity, copyright, and more. Until then, these virtual models have not only done their job and influenced real humans, but also forever changed the realm of social media advertising.

Endnotes

1. What Is an Influencer?, Influencer Marketing Hub, https://influencermarketinghub.com/what-is-an-influencer (last updated Feb. 1, 2019).

2. Id.

3. Heather Nolan, Brands Are Creating Virtual Influencers, Which Could Make the Kardashians a Thing of the Past, Adweek (May 11, 2018), https://www.adweek.com/brand-marketing/brands-are-creating-virtual-influencers-which-could-make-the-kardashians-a-thing-of-the-past.

4. Jordan Anderson, Fashion’s New Fascination with Virtual Influencers Is Very Questionable, NSS Mag. (May 21, 2019), https://www.nssmag.com/en/fashion/18629/fashion-virtual-influencer-lil-miquela.

5. Tiffany Hsu, These Influencers Aren’t Flesh and Blood, Yet Millions Follow Them, N.Y. Times (June 17, 2019), https://www.nytimes.com/2019/06/17/business/media/miquela-virtual-influencer.html.

6. Id.

7. Lil Miquela (@lilmiquela), Instagram, https://www.instagram.com/lilmiquela (last visited Dec. 10, 2019).

8. Anderson, supra note 4.

9. Lauren Michele Jackson, Shudu Gram Is a White Man’s Digital Projection of Real-Life Black Womanhood, New Yorker (May 4, 2018), https://www.newyorker.com/culture/culture-desk/shudu-gram-is-a-white-mans-digital-projection-of-real-life-black-womanhood.

10. Hsu, supra note 5; David Griner, KFC Created a “Virtual Influencer” Colonel Sanders, Mocking Marketing’s Newest Odd Trend, Adweek (Apr. 11, 2019), https://www.adweek.com/creativity/kfc-created-a-virtual-influencer-colonel-sanders-mocking-marketings-newest-odd-trend.

11. Jackson, supra note 9.

12. Kaitlyn Tiffany, Lil Miquela and the Virtual Influencer Hype, Explained, Vox (June 3, 2019), https://www.vox.com/the-goods/2019/6/3/18647626/instagram-virtual-influencers-lil-miquela-ai-startups.

13. Julia Alexander, Virtual Creators Aren’t AI—but AI Is Coming for Them, Verge (Jan. 30, 2019), https://www.theverge.com/2019/1/30/18200509/ai-virtual-creators-lil-miquela-instagram-artificial-intelligence.

14. Id.

15. Disclosures 101 for Social Media Influencers, Fed. Trade Commission (Nov. 2019), https://www.ftc.gov/tips-advice/business-center/guidance/disclosures-101-social-media-influencers.

16. Hsu, supra note 5.

17. This expectation exists for all endorsers under the FTC. “Endorsements must reflect the honest opinions, findings, beliefs, or experience of the endorser. Furthermore, an endorsement may not convey any express or implied representation that would be deceptive if made directly by the advertiser.” 16 C.F.R. § 255.1.

18. Id. § 255.5.

19. Tiffany, supra note 12.

20. See Jelle Fastenau, Under the Influence: The Power of Social Media Influencers, Medium (Mar. 6, 2018), https://medium.com/crobox/under-the-influence-the-power-of-social-media-influencers-5192571083c3; What Constitutes an Influencer?, MediaKix (Aug. 31, 2018), https://mediakix.com/blog/influencer-definition-marketing.

21. Andrew Hutchinson, New Report Looks at the Rise of Virtual Influencers on Instagram, Soc. Media Today (Nov. 19, 2019), https://www.socialmediatoday.com/news/new-report-looks-at-the-rise-of-virtual-influencers-on-instagram/567550.

22. Rachel Torgerson, Those Crazy-Realistic Robot Models Taking Over Your Instagram Feed? Here’s Why They Look So Human, Cosmopolitan (July 31, 2019), https://www.cosmopolitan.com/lifestyle/a22567209/cgi-model-digital-influencer-shudu-instagram.

23. Id.

24. Estate of Presley v. Russen, 513 F. Supp. 1339, 1353 (D.N.J. 1981).

25. William Prosser, Privacy, 48 Cal. L. Rev. 383, 398–401 (1960); see also Restatement (Second) of Torts § 652A (Am. Law Inst. 1977).

26. See, e.g., Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir. 1983).

27. Apple Corps Ltd. v. A.D.P.R. Inc., 843 F. Supp. 342, 348 (M.D. Tenn. 1993); Shubert v. Columbia Pictures Corp., 72 N.Y.S.2d 851 (Sup. Ct. 1947).

28. See Estate of Presley, 513 F. Supp. at 1354.

29. Id. at 1354–55.

30. Woodrow Barfield, Intellectual Property Rights in Virtual Environments: Considering the Rights of Owners, Programmers and Virtual Avatars, 39 Akron L. Rev. 649, 675 (2006).

31. 971 F.2d 1395 (9th Cir. 1992).

32. Id. at 1396.

33. Id. at 1399.

34. Id. at 1397.

35. 125 F.3d 806 (9th Cir. 1997).

36. Id. at 809.

37. Id.

38. Id. at 811.

39. White, 971 F.2d at 1399.

40. Id.

41. See 17 U.S.C. § 102; Pamela Samuelson, Allocating Ownership Rights in Computer-Generated Works, 47 U. Pitt. L. Rev. 1185 (1986).

42. 17 U.S.C. § 201.

43. See id. § 102. According to the statute, copyrightable works of authorship include: literary works; musical works, including any accompanying words; dramatic works, including any accompanying music; pantomimes and choreographic works; pictorial, graphic, and sculptural works; motion pictures and other audiovisual works; sound recordings; and architectural works. Id. § 102(a).

44. See DC Comics v. Towle, 802 F.3d 1012 (9th Cir. 2015); Klinger v. Conan Doyle Estate, Ltd., 755 F.3d 496, 503 (7th Cir. 2014); Detective Comics, Inc. v. Bruns Publ’ns Inc., 111 F.2d 432 (2d Cir. 1940); see also Dawn H. Dawson, The Final Frontier: Right of Publicity in Fictional Characters, 2001 U. Ill. L. Rev. 635 (2001).

45. Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930).

46. Warner Bros. Pictures, Inc. v. Columbia Broad. Sys., Inc., 216 F.2d 945, 950 (9th Cir. 1954).

47. 802 F.3d at 1017.

48. Id.

49. Id. at 1021.

50. Id. at 1021–22.

51. Id. at 1021.

52. Jackson, supra note 9.

53. Arthur Zaczkiewicz, Meet Liam Nikuro, Japan’s First Male Virtual Influencer, WWD (Apr. 16, 2019), https://wwd.com/business-news/technology/ai-liam-nikuro-virtual-influencer-1203108160.

54. Colin Stutz, Virtual Singer & Internet Star Miquela Shares Debut Single “Not Mine, Billboard (Aug. 11, 2017), https://www.billboard.com/articles/columns/pop/7898117/miquela-virtual-singer-instagram-not-mine-song-stream.

55. 111 U.S. 53, 58 (1884).

56. Is Artificial Intelligence Set to Become Art’s Next Medium?, Christie’s (Dec. 12, 2018), https://www.christies.com/features/A-collaboration-between-two-artists-one-human-one-a-machine-9332-1.aspx.

57. Russ Pearlman, Recognizing Artificial Intelligence (AI) as Authors and Inventors under U.S. Intellectual Property Law, 24 Rich. J.L. & Tech., no. 2, 2018, ¶ 37.

58. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 359–60 (1991).

59. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.2 (3d ed. 2017) [hereinafter Compendium III].

60. Id.

61. Naruto v. Slater, No. 15-cv-04324-WHO, 2016 U.S. Dist. LEXIS 11041 (N.D. Cal. Jan. 28, 2016).

62. Id. at *10.

63. Compendium III, supra note 59, § 313.2.

64. When photographs were first deemed copyrightable, a case arose in England regarding whether a human could be named the author of the photograph, despite the mechanical intervention necessary to the process. See Nottage v. Jackson (1883) 11 QBD 627 (Eng.). This was the “first time a court openly acknowledg[ed] that the identification of authorship for a work is ultimately a causal question—a question of determining the ‘effective cause’ of the protected work.” Shyamkrishna Balganesh, Causing Copyright, 117 Colum. L. Rev. 1, 20 (2017). The court did acknowledge that the cause of authorship may vary depending on the situation: “It might thus be someone’s superintendence over the process in one instance, the arrangement of the subjects in another, or the physical taking of the picture in yet others.” Id.

65. 17 U.S.C. § 201(b).

66. See, e.g., Copyright, Designs and Patents Act 1988, c. 48, § 178 (U.K.).

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Sonia M. Okolie is a 3L law student at the George Washington University Law School and a law clerk at Banner & Witcoff, Ltd. in Washington, D.C. She assists in design patent and trademark prosecution and enforcement.
The opinions contained in this article are hers alone and do not necessarily represent the opinions of Banner & Witcoff, Ltd. or its clients.