AI and the Age of Identity
By Relani Belous, Esq.
We are all aware of the current discourse of (generative) artificial intelligence (AI) and its creeping universal use as the competing large language models gain steam. And despite that feeling in your stomach, it’s likely going to get harder and harder to discern what is real and as well, what or who one is engaging with these days.
One category of interest is that of “AI Influencers”. So, what are they?
Essentially, they are another form of the mainstay influencers we already know. They are machine-generated characters you can find on your social media pages and platforms. Like their human counterparts, they engage with followers to promote products or brands . Moreover, as you would expect in the case of the AI age, these personas of a digital nature are prudently manufactured to behave (look and feel) the way a human influencer would.
One example is Lil Miquela (debuted in 2016) who has approximately 2.6 million followers on Instagram and a steady income from the promotion of other products. And note that Lil Miquela isn’t known for any impudent content, and if you see her it's clearly computer-generated; there is no hiding that she is not a real woman. While this is a change from maybe typical interactions with the live kind of influencer, it soon will likely feel more mundane than odd. Nonetheless, the bottom line is that it’s marketing and an ad.
But let’s take a step back.
What is the actual “right of publicity”? It is not really an intellectual property right, but more of a personal right. It also varies from state to state depicted in statutes where other states may take a more common law approach. Other jurisdictions do not speak to the issue at all. This type of variation in law and enforcement is what makes publicity a very convoluted subject and matter. And, this is just the U.S..
With regard to state laws, they may sometimes protect everyone, and then there are others that only protect people with a commercially valuable name, which can include celebrities or other publicly notable figures. In addition, whether the person at issue is living or deceased may come into play. For example, in New York, right-of-publicity safeguards actually are for an individual's lifetime, but in California, it is one’s life by 70 years. This is why California is noted as one of the places where this publicity right is the strongest and has the most “bite”.
A few things are in the pipeline to handle the merger of tech and the humans “out there”. Part of the impetus of these regulations came from a fake robocall of President Joe Biden (as part of the New Hampshire primaries), the FCC adopted a rule that makes AI-generated voices in such types of robocalls illegal. Additionally, there are some states that have passed legislation addressing deepfakes in political ads and also have passed or amended statutes to criminalize deepfake revenge porn.
In January of this year, the No Artificial Intelligence Fake Replicas and Unauthorized Duplications Act of 2024 (or “No AI FRAUD Act”) was introduced in the House of Representatives. This Act would essentially create a property-like right in one's voice and likeness with many questionable incarnations, such as having elements which are transferable to other parties. There is much debate whether this Act misses the mark of the intent of a clear and practical approach to protecting one’s personal rights.
From the Hollywood side, in January of this year SAG-AFTRA, the largest performer’s/actor’s union, signed an agreement with Replica Studios (an AI voice technology company). The agreement will enable Replica to work with the union members under what they are calling a fair, ethical agreement to create and license a digital replica of their voice. In turn, such voices that are licensed then could be used in video game development and other interactive media projects from pre-production to final release. This is one way that the union is providing a safety net to its members prior to the onslaught of fraud and unscrupulous behavior yet to be seen.
On the commercial side, in an April 2024 press release, Dove has vowed to not use artificial intelligence to represent women in its advertising and communications as part of its long-running “Real Beauty” platform.
Earlier this year, the social media heavyweight Meta announced that it is adding a virtual aspect to AI content, namely watermarking images and content. As what is real and what is AI-generated continue to blur in the online milieu, including spam emails and odd-looking generated celebrities, this seems par for the course.
Overseas, in March 2024 the lawmakers in the EU greenlit the path for the Artificial Intelligence Act to be implemented later this year. This law will focus on risk, meaning the riskier an application is using AI, the more scrutiny it will be under. The EU is very concerned that the AI systems could “cause serious accidents or be misused for far-reaching cyberattacks.” They are also concerned that AI could spread “harmful biases” across many applications, and thus harm or affect a large number of people. The law does include that any deep fakes generated by AI in video or audio form of people (that exist), places or events must be labeled that they were artificially manipulated or created.
In the past, “finding oneself” was a good thing. Today, that includes publicity rights focused on “name, image, voice identity and likeness” rights. With AI-generated materials, this expands what a “ likeness” is and how that can be used in a more widespread use than ever before.
For now, from a standpoint of protections on identity and persona, if a business focuses its advertising or development of merchandise or products for mass consumption or even a niche segment of the consumer marketplace — there will be an emphasis on transparency as to the source of the ad or campaign. This will likely need to include clear and concise data retention and privacy policies as well as avoiding discriminatory or harmful elements to the same.
It is yet to be determined if AI will serve as evil personified or a blessing.
So, people of earth: keep an eye out for those celebrity deep fakes promoting products they never agreed to (or heard of), fake robocalls from political candidates, or tricksters that use a friend or relative’s purported voice for empathy and financial gain.
And once in a while, look away from the screen.
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Relani Belous runs her own law practice in Los Angeles, focusing on media, IP and technology. Her background includes working on complex commercial and business transactions coupled with an in-depth knowledge of intellectual property (IP), business affairs, compliance, labor issues, marketing, production/licensing, consumer products, famous brands, privacy, and media regulation. She is highly skilled at interpreting twentieth century laws (which have yet to be updated) for situations and matters that exist in the twenty-first century. She is proficient in providing expert-level legal representation and maintaining an unwavering commitment to protecting companies’ rights against the “Goliaths” of the world.
She loves trademarks so much that she runs and blogs about them via her branded site known as The Trademark Channel.
As a “360” lawyer, she has a track record for consistently meeting strict deadlines, maintaining maximum productivity in individual and group endeavors, and navigating diverse business structures, cultures and environments. Her experience also includes having worked in-house for brands and celebrities such as Stan Lee, MGM, The James Bond Franchise, Teen Wolf, and American Gladiators, to name a few. Her expertise with smaller companies and entrepreneurs was fueled from her involvement with the smaller vendors of larger companies. This serves to assist Ms. Belous' work with a variety of entertainers, influencers, and cutting-edge startups.
Ms. Belous is a member of the California and New York bars and is also a CPA. She is an active speaker and contributor on intellectual property law and technology, having been featured several times in the Los Angeles Daily Journal and she also is an active contributor to key industry trade organizations such as INTA and Licensing International.