rake, The Weeknd, and other artists’ best bet to stop AI-generated vocal imitators under right of publicity laws—which generally protect one’s name, image, and likeness from being exploited without permission—attorneys said.
But unlike copyright and trademark law, the right of publicity is based entirely on state laws. Some like New York and California provide explicit statutory rights, while others are based only in common law.
“Whether a particular state’s right of publicity law is going to cover something like somebody’s voice is going to depend on the state,” said Scott Sholder, an intellectual property attorney at Cowan DeBaets Abrahams & Sheppard LLP.
The fact that the AI-generated vocals are being used to create music and not commercial ads or products could complicate a right of publicity claim. A potential defendant could argue that the First Amendment protects AI vocals in an artistic work like a song.
Courts have long used a free speech balancing test—the Rogers test—that asks if the unauthorized use of IP is artistically relevant to the expression and not explicitly misleading to consumers. While often used for trademark infringement cases, the test originated in Rogers v. Grimaldi, a 1989 Second Circuit decision that shot down actress Ginger Rogers’ right of publicity and false endorsement lawsuit.
“The plaintiff’s side will say, no this is actually a commercial product because you’re selling downloads of the song or you’re getting paid per stream on Spotify,” Sholder said. “That’s going to be a thorny question.”
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May 8, 2023