Supreme Court Case on Broadcasting Performer's Act and Right of Publicity

The rise of deepfakes is a growing concern within the entertainment industry. Scott Hervey and Jamie Lincenberg discuss this and the intersection between free speech and protected rights on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Scott:
Deepfakes and AI-generated likeness are not just the concerns of striking actors. Just ask Drake, The Weeknd, and UMG, a Drake and Weeknd collaboration that busted the Internet in May of this year wasn’t real. It was generated by AI and made to sound like the performers. Where is it that current write of publicity laws work? And in what situations do they fail to address the scenarios presented by Deepfakes and AI-generated images? We are going to talk about this next on The Briefing by Weintraub Tobin. Let’s first identify the type of AI output that triggers the right of publicity concerns. It’s visual likeness and appearances, and then it’s also voices or vocal likeness. California’s right of publicity statute is Civil Code section 3344, and it prohibits the use of another’s name, voice, photograph, or likeness on or in products, merchandise, or goods, or for the purpose of advertising or selling such products, merchandise or goods without such person’s prior consent. California also has a common law right of publicity that’s a bit broader than the statute. But whereas a celebrity’s likeness isn’t being used on or in products, merchandise, or goods, or for the purpose of advertising or selling such goods, California’s right of publicity statute isn’t applicable, really.

As for a common law claim, even though common law provides for a broader right of publicity protection than the statute, the First Amendment may prevent any recovery. Generally, a claim for common law appropriation will not stand in the case of an expressive work due to First Amendment concerns.

Jamie:
So, Scott, it seems well settled that where a celebrity’s likeness, whether that be visual or vocal, is used in connection with the advertising or sale of goods or services, consent of that celebrity is required. The void seems to be where that celebrity’s likeness is used in an expressive work.

Scott:
That’s true, Jamie, and void is a good way of putting it since it’s not clear that this void is a shortcoming or some type of legal failure, or rather the greater importance of the First Amendment. Take, for example, the AI Drake song. Section 114 B of the copyright act permits sound-alikes. A publication of the US. Copyright Office specifically says that under U.S. Copyright law, the exclusive rights in a sound recording do not extend to making independently recorded sound-alike recordings. Copyright protection for sound recordings extends only to the particular sounds of which the recording consists and will not prevent a separate recording of another performance in which those sounds are imitated. The imitation of a recorded performance, no matter how similar to the original, would not constitute copyright infringement, even where one performer deliberately sets out to simulate another performance as exactly as possible. To extend a state right of publicity to cover the use of a celebrity’s vocal likeness in an expressive work like the A. I. Drake Song would put a law in effect that directly conflicts with the Copyright Act.

Jamie:
Let’s talk about New York’s right of publicity statute. In particular, section 50 F of New York’s Civil Rights Law, which took effect in 2021. This law addresses and prohibits certain uses of AI-generated lookalikes or digital replicas of deceased performers. The law prohibits the use of a deceased performer’s digital replica in a scripted audiovisual work, as a fictional character, or for the live performance of a musical work if the use occurs without prior consent from the owner of the publicity rights in the deceased celebrity. And if the use is likely to deceive the public into thinking it was authorized by that person, might that work as a potential model if it were also applicable to live celebrities?

Scott:
It may, but that statute has a rather large exception. Basically, a use is deemed not to be likely to deceive the public into thinking the use was authorized if the producer includes a disclaimer in the credits of the scripted audiovisual work or in any related advertisements in which the digital replica appears. Also, it’s not clear that this statute would hold up under a constitutional challenge.

Jamie:
And why is that?

Scott:
The prohibition of using a digital replica in a fictionalized audiovisual work may run afoul of the First Amendment. Noncommercial speech gets heightened protection under the First Amendment. We previously discussed this when we discussed Olivia de Havilland’s lawsuit against FX regarding her portrayal in Feud. In the court’s opinion, it assumes, for argument’s sake, that a television program is a product, merchandise, or good, and that Catherine Zetta Jones, that was who portrayed Olivia de Havlin and Zetta Jones’ portrayal of de Havlin constitutes a use of Dehavelin’s name or likeness within the scope of the right of publicity statute. Feud, the Court notes, is speech that is fully protected by the First Amendment, which safeguards the storytellers and artists who take the raw materials of life, including the stories of real individuals, ordinary or extraordinary, and transform them into art, be it articles, books, movies or plays. The Court said that the fact that FX did not purchase or otherwise procure de Havilland’s rights to use her name or likeness did not change the court’s analysis. The Court stated that film and television producers may enter into rights agreements with individuals for a variety of reasons. However, in this case, the First Amendment simply did not require such an acquisition agreement.

Jamie:
But in Feud. de Havilland was portrayed by Catherine Zeta-Jones, not a digital replica.

Scott:
That’s true, but should that change the analysis? Jamie? Should it make a difference if de Havilland was portrayed by Zetta Jones or a digital replica? I don’t know that it should make a difference.

Jamie:
So what’s to stop the use of de Havilland digital replica to play a character not herself in a modern-day drama? This is what the actors are concerned about.

Scott:
I understand that concern because the law isn’t really settled in that area. So, do we need a new state or federal right of publicity law that would require consent for the use of AI-generated likeness for an expressive work? And how would that hold up to a constitutional challenge?

Jamie:
This consent-based approach could empower individuals to control the use of their identities, preventing unauthorized deep fakes and the commercial exploitation of AI-generated likenesses. But would that be at the expense of free creative expression?

Scott:
I understand the concern because the state of the law really isn’t clear, and for guidance, we have to interpret how older cases that don’t fall squarely into our hypothetical may affect the Court’s reasoning. But I think we may have some solid jurisprudence that would give guidance to a court addressing a case like our de Havilland hypothetical. Assuming that de Havilland didn’t contractually agree to give the studio this right, the right to use an AI-generated likeness in other motion pictures or audiovisual productions. Maybe the 1977 Supreme Court case of Zucchini versus Scripps Howard Broadcasting may provide some guidance.

Jamie:
The human cannonball case.

Scott:
That’s right.

Jamie:
That case was about a reporter who taped Zucchini’s entire act without consent and then showed the act on a television news program later the same day.

Scott:
Right. See, that case had the same tension between right of publicity and the First Amendment, the First Amendment’s protection of fully protective expressive speech. The lower court acknowledged Zucchini’s right of publicity claim under state law, but the Court said that the news station’s inclusion of the recording of his act and their newscast was constitutionally privileged and that the news station could include that recording as a matter of public interest. On appeal, the Supreme Court distinguished this case from the prior cases on which the lower court relied on by observing that these lower cases involved the reporting of events, not the broadcasting or publishing of an entire act for which the performer ordinarily gets paid. The Supreme Court said that the First and 14th Amendments do not immunize the media when they broadcast a performer’s entire act without his consent. The Court continued to say that the Constitution no more prevents a state from acquiring respondent, meaning the news station, to compensate petitioner the performer for broadcasting his act on television than it would privilege respondent to film and broadcast a copyrighted dramatic work without liability to the copyright owner. The Court continued by saying that the broadcast of a film of the performer’s entire act poses a substantial threat to the economic value of that performance.

Scott:
As the Ohio Court recognized, this act is the product of the performer’s own talents and energy, the end result of much time, effort, and expense. Much of its economic value lies in the right of exclusive control over the publicity given to his performance. If the public can see the act for free on television, it will be less willing to pay to see it at the fair. The effect of a public broadcast of the performance is similar to preventing the performer from charging an admission fee.

Jamie:
And if a studio is allowed to use a digital replica of de Havilland playing a fictional role in a new movie she never consented to star in. That studio will be less willing to pay her to actually star in that movie.

Scott:
There is a quote from the Supreme Court that goes to the heart of this concern over AI. And the quote is as follows the broadcast of the petitioner’s entire performance, unlike the unauthorized use of another’s name for purposes of trade or the incidental use of a name or picture by the press, goes to the heart of the petitioner’s ability to earn a living as an entertainer. The Supreme Court reversed the lower court’s finding that the news broadcast of the entire act was privileged under the First Amendment. I do think that a court hearing a case about our hypothetical digital replica of de Havilland playing a fictional role in a new movie she never consented to star in may look to the Supreme Court case for guidance.

Jamie:
I can see that, too. But I also understand that the unsettled nature of this situation creates a cause for concern. Scott, thanks for sharing this today.

Scott:
Thanks, Jamie.

Jamie:
Thanks for joining us on today’s episode of The Briefing. Please remember to subscribe, like, comment, and follow along for future episodes.