DIGITAL FAME: AMENDING THE RIGHT OF PUBLICITY TO COMBAT ADVANCES IN FACE-SWAPPING TECHNOLOGY.

• Author: Duquette, Hayley

1. Introduction

   When a person reaches a level of popularity that inherently creates economic value in the use of their name and likeness, that person is entitled to the exclusive control of such use. (1) Known as the right of publicity, this entitlement has developed into a unique area of intellectual property law that essentially allows every person to exclude others from using their identity as a means for acquiring economic gain. (2) Although typically asserted by celebrities, the right of publicity is enforceable by any individual whose name, image, or likeness has been exploited. (3) The right of publicity is violated by unauthorized use of an individual's identity for commercial purposes. (4) Most right of publicity cases entail the defendant's use of the plaintiff's well-known name or likeness to create an association between the plaintiff and the defendant's source of revenue in order to reach a larger consumer audience. (5) However, non-commercial use of an individual's identity is sometimes actionable as well. (6) The right of publicity is recognized in the United States through state laws that are widely inconsistent with one another. (7) Growth of interstate and international communications has increased the difficulty of enforcing the right of publicity when the entitlements under this area of law are so disparate across the country. (8) Due to the accumulating need for stronger right of publicity laws, state legislatures have started to revisit their outdated definitions of this property right. (9)

   The recent increase in right of publicity disputes historically parallels technology's profound impact on society. (10) With social media platforms enabling global exposure of one's identity, it has become faster and easier for a person to acquire commercial value in their name and likeness which consequently leaves them at risk for having their identity misappropriated. (11) In addition, advances in technology have fostered vast opportunities for well-known individuals to be exploited for the commercial benefit of an unauthorized party. (12) Face-swapping technology and artificial intelligence, for example, now make it possible for unauthorized parties to create and disseminate digital simulations of recognizable individuals. (13) As these technologies improve, the chance that viewers will perceive these computer-generated depictions to be authentic images of the projected individual increases. (14)

   Advancing technology coupled with the perpetual rise of social media necessitate stronger protection for the right of publicity. The number of individuals who are likely to face violations of their right of publicity has multiplied since this right first emerged, because there are more ways to gain "celebrity status" now than ever before. Social media enables individuals to have control over their public image, but this control is threatened by advances in digital technology that make it possible, if not easy, to create fake depictions of well-known individuals. Ultimately, today's technology provides for endless means of misappropriating an individual's identity for commercial purpose. While current law's recognition of the right of publicity may have suited society half a century ago, social media's expansion of the public eye has compelled a push for reform in this area of law.

2. History

   A. Right of Publicity's Development at Common Law

   The right to control the commercial use of one's identity has recently found its home in intellectual property law, despite its existence being observed under the guise of a tort-based privacy right since the late nineteenth century. (15) Interestingly, the concept of a publicity right was actually the seed from which privacy law grew. (16) Although publicity rights and privacy rights were practically indivisible at their inception, the difference between these rights as they are known today is much more apparent; simply stated, the right of publicity is a property right while the right of privacy remains a personal right. (17) Rather than protecting against unwanted invasions, the right of publicity protects against unauthorized commercial appropriation. (18)

   Most scholars trace the development of privacy rights to a famous law review article, conveniently titled The Right to Privacy, published in 1890. (19) The authors, and later United States Supreme Court Justices, Samuel Warren and Louis Brandeis were the first to address an individual's right to be left alone as distinct from similar entitlements observed in pre-existing tort law. (20) Pointing to a combination of "recent inventions and business methods" within the photography industry as the catalyst in necessitating privacy protection, Warren and Brandeis called on the law to provide a remedy for the unauthorized circulation of portraits of individuals. (21) In emphasizing the need to prohibit the dissemination of a person's image without that person's consent, The Right of Privacy evidences how fact patterns that would constitute a right of publicity violation today were used to justify the right of privacy's inception. (22)

   The right of publicity divaricated from privacy law as public realization of the value in one's name or likeness grew. (23) The term "right of publicity" was first coined in 1953 by the Second Circuit in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. (24) Faced with a dispute concerning the use of athletes' photographs on baseball cards, the Haelan court focused on the economic interest at stake in the ability to control one's identity as opposed to the personal interests inherent in the right of privacy. (25) This emphasis on the economic interest clearly distinguished Haelan from prior case law; rather than the issue being that the plaintiff did not want their photograph viewed by the public at all, the plaintiffs in Haelan did not want their photographs to be sold for profit by third parties. (26) Nearly a quarter of a century later, the right of publicity gained U.S. Supreme Court recognition in Zacchini v. Scripps-Howard Broadcasting Co. (27) when the court ruled that a broadcasting company had substantially interfered with the economic value of a stuntman's performance by airing his entire act on television without his consent. (28) The court explained the purpose of enforcing a right of publicity as "protecting the proprietary interest of the individual in his act in part to encourage such entertainment." (29) Notably, this purpose corresponds the economic philosophy behind granting patent and copyright ownership, which is to encourage the creation of inventions and creative works that will eventually contribute to a robust public domain. (30) The Zacchini court expressly distinguished the right of publicity from the right of privacy and impliedly categorized it as a property right. (31)

   With a right to publicity in one's likeness established, courts were then tasked to define what could constitute one's likeness. (32) For example, in 1989 renowned singer and actress, Bette Midler, succeeded on her right of publicity action against Ford Motors for its unauthorized use of a "sound-alike" performer in one of its commercials. (33) After efforts to have Midler record a demo for a commercial proved unsuccessful, Ford resorted to use of the "soundalike" in order to fulfill its goal of having Midler's voice in its commercial. (34) The court found that what Ford had sought for its own use--Midler's voice--amounted to "an attribute of Midler's identity ... as distinctive and personal as a face." (35) Thus, the deliberate imitation of Midler's distinctive voice for a commercial benefit constituted misappropriation of her identity. (36) Although, at the time, a person's voice did not fall under the protected attributes under California's right of publicity statute at the time, the court found that Midler still had a valid claim under the common law. (37) In addition to recognizing a person's voice as a protectable attribute of their identity, other courts have likewise broadened the scope of publicity rights to encompass various identifiable features, such as a distinctive racecar that was well-known as belonging to a famous driver, and a television show host's opening catch-phrase. (38) Case law continues to provide the clearest illustration of what may constitute a person's likeness, although it is a boundless list. (39)

   B. Statutory Disparity

   A majority of states recognize the right of publicity under common law, statutory law, or both. (40) Unfortunately, the statutory versions vary significantly from state to state. (41) Some statutes omit the common law assumption that the unauthorized use is to be commercially purposed in order to be categorized with a right of publicity violation, while others strictly require commercial use. (42) Some states provide for a specific class of people that the right of publicity applies to. (43) The fifteen statutes that provide for the right of publicity to survive at death provide for a wide range of duration periods, with an eighty-year difference between the shortest and longest post-mortem terms. (44) Only a few states explicitly address the right of publicity as a property right. (45) There are even a handful of states that have yet to codify or judicially address the right of publicity and thus the right remains intertwined with the right of privacy. (46) Several statutes are of particular ambiguity and some contain unique provisions that are not recognized in other states. (47) Perhaps one of the more striking differences between the states are those that allow the right of publicity to be transferable and those that do not. (48) This disparity among the states' treatment of the right of publicity inhibits clear enforcement against misappropriation and blurs comprehension of publicity laws on a national scale. (49)

   C. Right of Publicity in the Intellectual Property World

   The property interest protected by the right of publicity...