Practical Law Intellectual Property & Technology, Right of Publicity: Overview, Practical Law Practice Note Overview 2-505-8377. California Civil Code Section 3344 provides, “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling,” without a person’s prior consent, is liable for damages. Cal. Civ. Code § 3344(a).

ng lists, which derive their value from the compilation of thousands of names, not any one individual’s information, somehow violates each individual’s right of publicity. A look through the common law from which these statutes evolved and existing case law, as well as common sense, makes clear that the sale or rental of mailing lists is not what the statutes were intended to protect.The long-standing right of publicity prevents the unauthorized commercial use of an individual’s name or likeness or other recognizable aspects of one’s persona. It gives an individual the exclusive right to license the use of their identity for commercial promotion. Though it started in common law, many states have since codified the right and provided statutory damages for any violation. While these statutes vary state to state, in general, they protect the “right to control and to choose whether and how to use [one’s] identity for commercial purposes.” See, e.g. 765 Ill. Comp. Stat. § 1075/10; see also Cal. Civ. Code § 3344(a); Ohio Rev. Code § 2741.02(A); Cal. Civ. Code § 3344(a). They require that the person’s name or likeness not be “held out” on or in products, merchandise or goods; for purposes of advertising or selling; or for soliciting purchases of products, merchandise, goods or services, without such person’s prior consent.Several state and federal courts have already held that right of publicity statutes were not intended to be applied to the sale of mailing lists. SeeSmith v. Chase Manhattan Bank, USA, N.A., 293 A.D.2d 598, 600 (N.Y. App. Div. 2002) (holding that the right of publicity law should be narrowly construed and was not intended to address the sale of customer information for marketing products and services). Last year, the U.S. District Court for the Central District of Illinois held that the sale of mailing lists does not alone meet the “commercial purposes” requirement under the Illinois Right of Publicity Act (IRPA). Huston v. Hearst Communications, Inc., Case No. 1:21-cv-01196-MMM

opyright Act allows for "soundalikes." However, that may not be the end of the inquiry. While the creator of the "Fake Drake" may not be liable for copyright infringement, he or she may have violated Drake's right of publicity.According to the International Trademark Association, the right of publicity is "an intellectual property right that protects against the misappropriation of a person's name, likeness, or other indicia of personal identity—such as nickname, pseudonym, voice, signature, likeness, or photograph—for commercial benefit." Seehttps://www.inta.org/topics/right-of-publicity/ (last visited June 2, 2023).Unlike the Copyright Act and Patent Act, for example, there is no federal statute that protects an individual's right of publicity. Instead, those protections are enshrined by state laws. Not every state, however, has enacted right of publicity laws. Notably, California and New York – which have substantial media and entertainment industries – have such laws in place. See Cal. Civ. Code § 3344 ; N.Y. Civ. Rights Law §§ 50-51. As pertinent to this discussion, California's right of publicity statute protects against the use of a person's name, voice, or likeness without their consent and for commercial purposes. Cal. Civ. Code § 3344(a). Protection of the right of publicity can extend to the deceased as well. See e.g., Cal. Civ. Code § 3344.1; N.Y. Civ. Rights Law § 50-f. Notably, it does not appear that "Heart On My Sleeve" was used to advertise or sell products or services.Nevertheless, right of publicity laws have been used by celebrities to protect arguably their most valuable asset, their identities. Some well-known examples which you may be familiar with are listed below:Actress Katherine Heigl, who rose to superstardom in her role as Dr. Izzie Stevens on the television show Grey's Anatomy, was photographed by paparazzi as she exited a Duane Reade drugstore in New York. Duane Reade then used the photo to promote its brand by posting it on social media with the caption "

Eastwood v. Super. Ct., 149 Cal. App. 3d 409, 417 (1983). Pertinent here, California Civil Code section 3344 adds two additional elements to the common law claim, including (1) knowing use of the plaintiff’s likeness and (2) a direct connection between the defendant’s use and the commercial purpose (i.e. that the use was directly connected with advertising or sales). Cal.

The parties filed seven motions for partial summary judgment, and judgment was entered in favor of Defendants. Subsequently, Defendants moved for an award of attorneys’ fees and costs under the Copyright Act, the Lanham Act, California Civil Code §3344, and California’s Unfair Competition Law. Under 17 U.S.C. §505 of the Copyright Act, courts may allow recovery of reasonable attorneys’ fees by the prevailing party as a matter of discretion.

In NCAA Football 2008, the virtual quarterback for Nebraska also has most of the same characteristics as Keller. Keller asserted that EA violated his right of publicity by including his unauthorized likeness in the video game, pursuant to California Civil Code § 3344 and common law. Keller then became a lead plaintiff in a putative class action involving other college athletes also depicted in NCAA Football.

nce to achieve trademark registration. For example, famous boxing and wrestling announcer Michael Buffer registered several variations of his famous voice used in conjunction with his catchphrase: “Lets' Get Ready to Rumble!” phrase. Keep in mind, the trademark protects only the phrase, not his actual voice. Reportedly, he found that people were copying this all over the place so his IP attorneys told him to register the name, and so he did, reportedly earning HUNDREDS OF MILLIONS OF DOLLARS from exploiting his trademark, a truly incredible IP success story!Right of Publicity Law in California can protect a Voice from misappropriationProbably the best avenue to protect a person's voice from wrongful use is through "Right of Publicity" laws, which vary state to state. California and New York (entertainment capitals of the world) have robust NIL (name, image and likeness laws). California has both a statutory right of publicity and a common law right. The statutory right is found at Cal Civil Code Section 3344 which notes:(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to presen

Federal judge boots Most AI copyright claims Re: StabilityA federal district court judge has thrown out most of the claims that a group of artists asserted against artificial intelligence (AI) platforms that they claim used their work without permission.The case is Andersen et al. v. Stability AI Ltd.Sarah Anderson and other artists filed a putative class action on behalf of themselves and other artists to challenge the defendants’ creation or use of Stable Diffusion, an AI software product.Plaintiffs assert the following claims against all three sets of defendants: Stability AI Ltd. and Stability AI, Inc., DeviantArt, Inc., and Midjourney, Inc.:Direct Copyright Infringement, 17 U.S.C. § 106;Vicarious Copyright Infringement, 17 U.S.C. § 106;violation of the Digital Millennium Copyright Act, 17 U.S.C. §§ 1201-1205 (“DMCA”);violation of the Right to Publicity, Cal. Civil Code § 3344;violation of the Common Law Right of Publicity;Unfair Competition, Cal. Bus. & Prof. Code § 17200; andDeclaratory Relief.Plaintiffs alleged that Stable Diffusion was “trained” on plaintiffs’ works of art to be able to produce Output Images “in the style” of particular artists.The three sets of defendants each filed separate motions to dismiss. DeviantArt also filed a special motion to strike.The judge granted the motions to dismiss and deferred the motion to strike.According to the judge’s summary of the complaint,Stability created and released in August 2022 a “general-purpose” software program called Stable Diffusion under a “permission open-source license.” … Stability is alleged to have “downloaded of otherwise acquired copies of billions of copyrighted images without permission to create Stable Diffusion,” known as “training images”… . Over five billion images were scraped (and thereby copied) from the internet for training purposes for Stable Diffusion through the services of an

commercial. Even though Willis might have health issues that limit some activities, his digital twin effectively allows Willis to continue his professional career indefinitely, regardless of his health or age, and without the need for his physical presence.Deepfake technology can also be a bane to a celebrity when used to exploit their likeness without compensation or authorization, which is the alleged situation in Kyland Young v. NeoCortext, Inc., No. 2:23-cv-02496-DSF-PVC (C.D. Cal.). Defendant NeoCortext’s deepfake app, Reface, allows a user to swap their face with someone else, including a celebrity, but the celebrity has not necessarily authorized NeoCortext or the user to show or manipulate their likeness. Reface uses the likeness of former Big Brother contestant, Kyland Young, among others, without authorization. Consequently, Young filed a complaint against NeoCortext on April 3, 2023 asserting a single cause of action—violation of the California Rights of Publicity Statute (Cal. Civ. Code § 3344). Young filed the case as a putative class action on behalf of an indefinite number of other similarly situated citizens of California.California’s Right of Publicity Statute protects individuals from having their likenesses used by others, knowingly and without permission, on products or to advertise or sell goods and services. Young claims that NeoCortext has violated this statute by using his likeness, and the likeness of other celebrities, to encourage users to pay to upgrade their version of the app.The basic version of Reface is free. It includes access to the Reface “Pre-sets catalogue” which, according to Reface’s Terms of Use, is a library of images and videos to use for face swapping that may include third party content from a variety of publicly available sources, such as mybestgif.com, Google Video, and others. Young alleges that the Pre-set catalogue contains images and videos of himself and many other celebrities, often including their most famous and recognizable scenes

vides one example.Kyland Young filed a class actionlawsuitagainst NeoCortext, Inc. (“NeoCortext”) for commercially exploiting his and thousands of other actors, musicians, athletes, celebrities, and other well-known individuals’ names, voices, photographs, or likenesses to sell paid subscriptions to its smartphone application,Reface, without their permission.Refaceis a deep-fake software that allows users to swap their faces with individuals they admire or desire in scenes from popular shows, movies, and other viral short-form internet media.The complaint alleges violations of the class members’ rights under the California Right of Publicity statute, which states that, “[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner … for purposes of advertising or selling, or soliciting purchases of … services, without such person’s prior consent … shall be liable for any damages sustained by the person or persons injured as a result thereof.” Cal. Civ. Code § 3344(a).GAI is a powerful tool and has many applications. Many uses will be fine, but many will cross a legal line. Some will do so based on intentional design. Others will do so inadvertently. TheRefaceapp appears to consciously use celebrity images. With some other GAI apps, the models are trained on huge quantities of images, including some images of celebrities. This leads to the possibility that some user prompts may cause the output to include the name, image or likeness (NIL) of a celebrity. This may be the case, even if the GAI tool is not specifically designed to output celebrity images.Responsible companies are taking proactive steps to minimize the likelihood that their GAI tools inadvertently violate the right of publicity. Some examples of these steps include attempting to filter out celebrity images from those used to train the GAI models andfiltering prompts to prevent users from requesting outputs that are directed to celebrity based NIL.