The “Fake Drake” song is representative of some of the doctrinal tension between the right of publicity and copyright law, the latter of which generally permits intentionally imitative performances under 17 U.S.C. § 114(b). Imitations, however, require an “independent fixation” of sounds, whereas AI programs derive their output from the ingestion of a performer’s actual voice, raising novel questions regarding § 114(b)’s application.
Similarly, while copyright law generally preempts state law claims that attempt to prohibit the reuse of one lawfully fixed copyrighted work within another, it can hardly be said that vocal synthesizers, which create output substantially dissimilar to the ingested works in everything but vocal tone, are being charged with mere reproduction of an artist’s voice as embodied in their recordings.
It would thus be a mistake to assume that record labels, simply by dint of controlling certain copyrighted works implicated in a prospective licensee’s activities, necessarily have the authority to bargain away the personal rights of the artists on their rosters who created those works. Indeed, this issue has arisen at least once in litigation regarding anti-bootlegging protections.
In A.B.K.C.O. Music, a consortium of music publishers sued the operator of a website, Wolfgang’s Vault, over the latter’s decision to exploit a collection of bootlegged musical performances (chiefly derived from the archives of concert promoter Bill Graham) without the consent of the featured artists. One of the website’s defenses was that it had signed agreements with the artists’ record labels to purportedly bless the exploitation. However, the anti-bootlegging right was personal to the artists under 17 U.S.C. § 1101, and none of the agreements “provide[d] any written consent from the artists themselves, nor [did] they purport to state that the artists consented to the recording of their performances.” So, too, is the right of publicity personal to artists.
Actors and major studios are grappling with similar questions and complexities related to using AI to recreate actors’ likenesses. Eighteen months of negotiations between the Screen Actors Guild and the American Federation of Television and Radio Artists (SAG-AFTRA) and major video game studios have recently stalled over AI. SAG-AFTRA has proposed language that would require companies to obtain performers’ consent before using AI to replicate their likeness and guarantees compensation for any performer whose likeness is replicated. The proposed provision is similar to the term agreed to for television and film actors in response to last year’s SAG-AFTRA actor’s strike, which mandates the consent and compensation of actors whose likenesses are replicated.
The U.S. Copyright Office (USCO) also has joined the conversation, releasing a report in late July 2024 on copyright and AI that emphasized the need for a national right of publicity. Specifically, the USCO recommended Congress implement a statute that is narrower than the “name, image and likeness” protections offered by many states in how persona and identity are defined but broader in that the recommendation says explicitly that the statute should extend to all individuals, whether or not their likeness has “commercial value.” Other specific recommendations include allowing individuals to license their likeness but preventing the assignment of likeness and protection enduring at least for the individual’s lifetime.
The bipartisan Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act of 2024, officially introduced on July 31, 2024, should it pass, would implement many of the USCO’s recommendations. One notable discrepancy between the NO FAKES Act and the USCO’s perspective, however, is the bill’s intended preemption of causes of action under state law for the protection of an individual’s voice and visual likeness rights in connection with a digital replica, as defined in the act, in an expressive work. The USCO, conversely, opines that any legislation should provide some national consistency, but not necessarily preempt state law, and emphasizes the role state law could continue to play in regulating an individual’s likeness, especially where imitation of a voice is concerned.
It remains to be seen whether the NO FAKES Act will be signed into law, but in the meantime, performers and their teams must rely on state right of publicity laws to challenge AI imitations of likeness.