About Face: Courts Weigh AI Face-Swapping Technology and Celebrity Rights

The Ninth Circuit recently upheld a ruling allowing a class action against NeoCortex, the creators of the Reface app, over the unauthorized use of content creator Kyland Young’s likeness. This case highlights the growing tension between AI innovation and individual rights. Scott Hervey and Jamie Lincenber discuss the lawsuit and what it means for AI companies using digital likenesses on this installment of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Scott: Recently, the Ninth Circuit upheld the District Court’s refusal to throw out a proposed class action brought by a one-time reality star based on the use of his face by an AI-based face-swapping application. The tech company, NeoCortex, argued that its use of the TV star’s face didn’t violate his publicity rights and moved to dismiss the case under California’s anti-slap laws. Both the District Court and the Ninth Circuit on appeal rejected NeoCortex’s This is Motion to dismiss.

I’m Scott Hervey, a partner with the law firm of Weintraub Tobin, and I’m joined today by my colleague, Jamie Lincenberg. We are going to talk about this case and its broader implications for AI companies whose business playbook involves exploiting the likeness of others on today’s installment of the Briefing.

Jamie, welcome back to the briefing.

Jamie: Thanks, Scott. It’s always good to be here.

Scott: Yes, this one, I think, is going to be a real fun one, Jamie. How about we get into this one? Kylin Young brought this suit against Neocortex. Neocortex is the creator of the Reface app. Jamie, have you used the Reface app?

Jamie: I haven’t. No, but it sounds fun.

Scott: It does sound fun. I haven’t used it either. I’m going to have to give it a shot here. Okay, so Mr. Young alleged that Neocortex used his likeness without consent to promote the Reface app. Reface, it’s an app that allows users to superimpose their faces onto celebrities and images and videos. Kyla Dylan was a cast member of a few reality shows, including Big Brother. The Reface preset catalog contains videos and images of Young from his appearance on Big Brother.

Jamie: Young claimed that Neocortex used Young’s likeness in promotional watermarked clips to advertise their subscription service. He argued that the watermarked images created with the free version of Reface were teasers and that the watermarks incentivized users to pay to remove them. They serve as free advertising to attract new downloads of the Reface application. He also alleges that the images generated with the pro-version of Reface are paid products that would then constitute commercial use and purpose.

Scott: He alleged that this all violated California’s right of publicity statute, specifically, Section 3344 of the Civil Code. We’re all very familiar with 3344, and anybody who listens to this podcast knows we talk a lot about 3344. So Section 3344 prohibits the use of another person’s name, voice, signature, photograph, or likeness in any manner 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. Young brought a class action on behalf of all other individuals whose name, voice, and likeness were used to promote the Reface app without their consent.

Jamie: So on the surface, this case probably seems rather cut and dry, but we all know that’s rarely the case. At the district Court level, Neocortex filed a motion to dismiss under California’s anti-slap statute.

Scott: Right. So procedurally, the district Court denied Neocortex’ motion to dismiss. Neocortex appealed, and the Ninth Circuit upheld the district Court’s decision. So I I thought it would be good to look at where the district Court and the Ninth Circuit were aligned, because that’s going to be very informative for both AI companies whose playbook involved using individuals likenesses, and also maybe for potentially future aggrieved individuals.

Jamie: Right. Yeah. To set the stage, California’s anti-slap statute is designed protect defendants from lawsuits that might stifle their right to free speech or petition. California’s anti-slap statute is a two-step process. The first step, the defendant must show that the plaintiff’s claims arise from an act in furtherance of their right to free speech or petition. Step two, if the defendant makes that showing, the burden shifts to the plaintiff to demonstrate a likelihood of prevailing on the merits their claim.

Scott: In this case, Neocortex argued that its use of Young’s likeness and promotional watermarked clips was part of its constitutionally protected commercial speech aimed at promoting its app. Thus, it contends ended the claims fell within the scope of the anti-slap statute. The District Court essentially agreed. It said, wrongful or not, Neocortex use of Jung’s image as a tool to provide users with a mode of creative expression is conduct in furtherance of a user’s free speech rights.

Jamie: On appeal, the Ninth Circuit assumed, without really deciding, that Neocortex satisfied the first step of the anti-slap test.

Scott: Right. I think that’s really because all the action is really in the second part of the analysis, determining whether Jung demonstrated a probability of prevailing on the merits of his claim.

Jamie: So The Neocortex argued that Jung failed to show that Neocortex violated his right of publicity on three grounds. The first is copyright preemption. The second was that Neocortex used was First Amendment transformative use. And thirdly, that Neocortex lacked knowledge that it was specifically using Jung’s likeness.

Scott: So let’s take those one step at a time. As to copyright preemption, the district Court found that Young’s claim was not preempted. The reasoning is rooted in the nature of publicity rights. Unlike copyrights, which protect creative works, publicity rights protect a person’s name and likeness. The Court emphasized that the claim targeted the misuse of Young’s likeness in advertising, not the distribution of a creative work. Because Young’s allegations center on how his name and likeness are used in Neocortex products and not on the ownership rights to the image itself, Young’s claim in the complaint does not fall under the subject matter of copyright, and his claim is, therefore not preempted under the Copyright Act.

Jamie: Right. The Ninth Circuit agreed with the district Court on this.

Scott: Right. That’s correct.

Jamie: Let’s now talk about the transformative use argument. The transformative use defense assesses whether a person’s likeness is merely a raw material for creating something new or if it’s the core substance of the work. Neocortex argued that the refaced generated clips were transformative, but the District Court didn’t quite buy that.

Scott: Right, it didn’t. The District Court noted that the clips still portrayed Jung in roles that aligned with his public persona, not as something distinct or creatively altered. Neocortex would only be entitled to the defense as a matter of law if no trial or fact could reasonably conclude that the resulting clips or images were not transformative. However, a trial of fact could reasonably conclude that the neocortex’s use of Jung’s likeness was not sufficiently transformative, given Jung’s allegation that the resulting clips and images featured Jung in the roles for which he is known.

Jamie: Right. And so the Ninth Circuit upheld the District Court’s conclusion.

Scott: Right. And I think this is an important takeaway for establishing transformative use of an individual’s likeness. Using a likeness in a way that doesn’t significantly alter its context or meaning likely won’t qualify as transformative under California law, and therefore, that use probably still could be actionable under 3344.

Jamie: Lastly, both the District Court and the Ninth Circuit addressed Neocortex’s contention that Young failed to show that Neocortex had knowingly used Young’s identity in the re-face application. The court highlighted that Neocortex made its database searchable, potentially allowing users to identify specific individuals, including Jung. This level of customization really suggests Neocortex likely knew they were using Young’s likeness, even if not explicitly stated.

Scott: Yeah, that makes a lot of sense, the court’s conclusion here, when you think about it. Somebody at Neocortex needed to include a meta tag on the video or images that Young appeared in, and they needed to include Jung’s name in that meta tag. Otherwise, the images that included Jung would not be searchable. Someone needs to enter the data that allows users to search for those individuals or other things. I think the court’s finding that knowledge was essentially imputed in the neocortex makes a lot of sense. However, let’s take a step back. This It’s the contention that knowledge is required under a right of publicity claim under 3344, it’s a very interesting contention when you think about it. Usually in a right of publicity case, the issue of knowledge, it’s not really an issue. Generally, the defendant knows whose image, whose likeness it was using.

Jamie:  Right. Yeah. The district Court doesn’t really address whether this is an actual requirement. It said, even assuming that 3344A requires a defendant to affirmatively know that it’s using a specific plaintiff’s likeness likeness. Young’s allegations support a reasonable inference that Neocortex knew that it was using Young’s likeness. The court may have to go deeper into this later on if the case persist.

Scott: Right. But I think there might be a danger in this. There might be a danger in this opinion and the court leaving it open, whether or not 3344(A), a claim requires knowledge, because I think what you’re going to start to see then is where claims are brought, right? A publicity claims are brought under 3344A. A defendant is going to allege, or not allege, a defendant will begin to try to defend that claim by saying that the plaintiff hasn’t established knowing use by the defendant. So we’re going to see this requirement or an allegation that knowledge is a requirement of 3344(A), I think we’re going to start to see it start to proliferate right of felicity cases. So I think not nipping this in the bud might present a problem down the road, because if I was representing a defendant in a 3344A case, I certainly would defend the case on every ground that’s reasonably possible, including the lack of knowledge by the defendant.

Jamie: Right. Yeah, I agree.

Scott: Yeah. But let’s talk about what this case means for AI developers and evolving landscape of digital likeness rights.

Jamie: Well, the case definitely underscores the tension between innovation and individual rights.

Scott: It does. We know that there is a hodgepodge of state laws that address this type of tension. This type of activity is prohibited Probably prohibited in Tennessee under the new Elvis Act. It would probably also be in violation of the proposed federal No Fakes Act.

Jamie: Yeah, it’s a cautionary tale for AI developers. We all know that tech companies like to move fast, but in dealing with publicity rights, AI developers really need to carefully navigate how they’re using identifiable personal features in their products, and especially for marketing purposes.

Scott: Agreed, completely. At the state level, as we mentioned, there are already laws on the books that specifically target the use of famous individuals likeness is both dead and alive within an AI product. At the federal level, like I said, while it would probably be a violation under the proposed federal No Fakes Act, It’s a bit unclear which way the winds may blow as a result of the election. But I think that this is a non-partisan issue, and it probably deserves federal review, but we’ll see. As of this week, there’s a new AI czar, so we will see what happens here.

Jamie: Yeah. One more thing It also seems relevant to point out that there are ways that Neocortex may have been able to secure these rights without having to go directly to the user.

Scott: I agree. It’s not clear to me whether Neocortex actually licensed these clips from the broadcast networks. As we know, working in this space, the producers and broadcasters of programming programs like this, specifically, non-scripted television programs, generally obtain pretty broad use rights for the content. I would suspect that the be right granted by Young to the producers of Big Brother would probably include this type of use had Neocortex licensed this content from the producers of Big Brother. I don’t know whether they did or didn’t. That’s not part of this case. Maybe we’ll know as this case goes forward. I guess we’ll see, right?

Jamie: Yeah, we’ll see. I think a common thread that I’m finding with a lot of these AI cases is that at the moment, there’s really no great way of monitoring all of this use. It’s so widespread that I think that becomes a major concern.

Scott: Yeah, I agree.

Jamie: I don’t know the fix there.

Scott: Well, I guess there’s a business there for somebody who wants to be in the business of monitoring new AI platforms’ use of potentially infringing content, because you’re right. There’s a lot of platforms and a lot of content and a lot A lot of new uses of GAI type of content, and it’s challenging to keep abreast of everything that’s out there. There’s a business for somebody there for sure.

Jamie: Definitely.

Scott: Yeah. Well, that’s all for today’s episode of The Briefing. Thanks to Jamie for joining me today. And thank you, the listener or the viewer for tuning in. We hope you found this episode informative and enjoyable. If you did, please remember to subscribe, leave us a review, and share this episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment.