Tag: Trademark

AI Machine Learning:  Remedies Other Than Copyright Law?

In my last post, I discussed some of the allegations that “machine learning” (ML) with the use of copyrighted works constitutes mass infringement. Citing the class action lawsuits Andersen and Tremblay, I predicted that if the courts do not find that ML unavoidably violates the reproduction right (§106(1)), copyright law may not offer much relief to the creators of the works used for AI development. As of last week, it remains to be seen whether we’ll get to that question after Judge Orrick of the Northern District of California stated that he is tentatively prepared to dismiss the suit with leave to amend the complaint. The judge did indicate that a claim of direct infringement could survive, but we’ll have to see what comes of an amended complaint.

As mentioned in the last post, if the court does not find a valid claim of copyright infringement, the other allegations will likely fail as a result. Nevertheless, though the state allegations may be moot in the class cases filed thus far, I had intended in this post to look at whether any non-copyright remedies present much hope for creators. For instance, the Andersen complaint alleges violations of statutory and common law rights of publicity and violations of statutory unfair practice prohibitions in the State of California.

Right of Publicity and Works “in the style of…”

One of the most concerning aspects of generative AI is that it allows a user to prompt the system to make a work “in the style of [named artist].” Karla Ortiz, in her testimony to the Senate Judiciary Committee on July 12, stated, “[Artist] Greg Rutkowski, had his name used as a prompt between Midjourney, Stability AI and the porn generator Unstable Diffusion, about 400,000 times as of December 2022. (And these are on the lower side of estimates).” This is a deeply personal assault on the identity, work, and potential livelihood of an artist who has spent years mastering his craft and developing that distinctive style which can now be mimicked by a computer. But as a matter of doctrine, copyright does not protect style. So, can state laws like the right of publicity (ROP) offer any relief?

Only half the states in the U.S. have statutory rights of publicity, though most states recognize a common law ROP, which may prove more expansive in a litigation. The California statute, considered one of the strongest, prohibits the use, without consent, of a person’s likeness, name, voice, or signature for commercial purposes. In particular, advertising a product, service, or viewpoint so that a representation of the individual implies that person’s endorsement, is a paradigmatic violation of ROP and may infringe the speech right of the individual. But does prompting a generative AI to create an image “in the style of [artist]” implicate the artist’s ROP? Maybe and sometimes.

Because a user can prompt the production of a visual work “in the style of Greg Rutkowski,” one obvious implication is that there will be hundreds or thousands of “Rutkowskis” in the world which the artist did not create. If any of those AI-generated works are substantially similar to an existing work he did create, then he may have claims of copyright infringement—and potentially too many to contemplate addressing. But what about the works that do not look substantially similar to anything in the artist’s portfolio but to the observer, do look like “new Rutkowskis”?

In the fine-art trade, the duty to validate provenance and authenticity (i.e., not commit forgery) should offer some protection for those artists who sell their work in galleries etc. But in the commercial market, if a new vodka brand wants images in the style of, say, Molly Crabapple for its ad campaign but doesn’t want to hire Molly for the job, they could use generative AI to make something in her style. No question this implies that artists will lose gigs, but whether ROP offers a remedy to Crabapple herself in this hypothetical is questionable.

To begin, artwork in the style of the artist is not a “likeness.” Thus, Crabapple would have to prove that observers seeing the ads would perceive the images as her work and that the images, therefore, result in an unlicensed endorsement in violation of ROP. That can be a high bar to reach, let alone repeat in what could amount to multiple complaints by just one artist—and potentially in multiple states! Although a violation of ROP can stand alone without an underlying violation of some other law, it is a fact-intensive, case-by-case consideration and, therefore, hard to imagine how it can support allegations of harm to a plaintiff class as alleged in Andersen.

Moreover, some states only recognize celebrity ROP and not average citizen ROP. So, in the case of the visual artist, what is the threshold where he or she is famous enough to be considered a celebrity? Crabapple, Rutkowski, et al. are very well known in the art world, but they’re not movie-star well known to the general public. So, what constitutes “celebrity” in this context? We don’t know. The specific problems caused by generative AI are brand new.

New Federal ROP Law?

In testimony before the SJC along with Karla Ortiz, General Counsel for Universal Music Group Jeffrey Harleston broached the subject of adopting a federal right of publicity, and the idea was at least entertained by some of the senators. A federal ROP could theoretically address some of the new harms to artists caused by generative AI. Not only would a federal statute provide a uniform, national framework, but the new law would be written with an understanding of AI and its potential harms as a foundation of legislative intent. Further, it was raised in committee that ROP should apply to everybody and not just celebrities.

The Motion Picture Association (MPA) filed comments in response to this discussion, and these were focused largely on the fact that, historically, ROP has applied to commercial/promotional uses, but not to expressive ones. The MPA is right to point to some tricky considerations that would need to shape a new federal ROP in order to strike a balance between disenfranchising creators or performers through AI-generated replicas while allowing use of the technology to create expressions that are protected by the First Amendment.

In fact, in my book, I allude to a hypothetical future biopic about Carrie Fisher that (with the family’s permission, of course) might dramatize scenes using AI replicas. Whether this use of the technology would be an engaging choice in lieu of casting an actress play young Carrie is a question of aesthetics and culture, but not a question that can or should be addressed as a matter of law. Suffice to say, the contours of a prospective new federal ROP are complex enough to be subject of future posts.

Unfair Competition

Unlike an ROP complaint, unfair competition does not stand alone as an allegation. In general, these laws bar businesses from gaining unfair advantage by engaging in some form of prohibited conduct. In the Andersen et al. class action suits, the underlying conduct is alleged to be copyright infringement, which allegedly makes the AI developers unfair competitors with the plaintiff class of artists. This state allegation would seem to have merit if the court finds the developers liable for violation of §106(1) of the Copyright Act, and unlike ROP, I can see it surviving as a complaint for a whole class—i.e., as unfair competition against all artists. That would be encouraging. But if, for instance, the court finds that not all the named plaintiffs have standing (i.e., do not have registered works in suit), it’s hard to say what this does to the unfair competition complaint as argued.

What About Trademark?

It is tempting to wonder whether certain creators can find protection in trademark law. In addition to the cost of registering and maintaining a trademark, only certain artists would be able to make effective use of this form of intellectual property. In this instance, trademark only protects use of the artist’s name in commerce, and since it is already illegal to trade in forgeries, registering one’s name as a trademark may be redundant and little protection against the use of AI to produce “in the style of” works.

Relatedly, the Federal Trade Commission (FTC) may have a role to play to protect consumers against fraud stemming from the uses of generative AI. As to the FTC stepping in, presumably they could respond to or seek prophylactically to protect consumers from forgery at scale. Not unlike the rampant proliferation of counterfeit products sold via eCommerce sites, generative AI certainly presents the opportunity for some party to start generating mass forgeries of popular artists and selling those in the millions. As such, measures to restrict the use of artists’ names in generative AI may belong in the FTC’s wheelhouse.

In both this post and the last, my intent is not to advocate on behalf of the AI developers. Far from it. Instead, I am trying to kick the tires of existing law to ask whether the law is sufficient to the task of protecting authors of creative works. Because, overall, I’m not sure it is, though it is also essential to note that every type of work has different implications (i.e., voice actors’ rights are more likely to sound in ROP than visual artists’ rights).

One thing is certain. Generative AI is not comparable to the printing press, camera, phonograph, or any more recent changes to production and distribution enabled by digital technology. Debate about AI must be sequestered from discussions about technologies of the past because few, if any, of those revolutions are instructive to the moment. There is no doubt that AI implies new regulation in medicine, finance, IT, security, and just about everywhere else it will invade; and there is no reason why Congress cannot adopt the same posture in order to protect America’s creative culture and economy.

Image source by: idaakerblom

Slants Trademark Decision May Have Other IP Implications

In 2010, the Oregon-based, Asian-American band had its application for a trademark in the name The Slants rejected by the US Patent and Trademark Office. The denial was based on a statute in the 1946 Lanham Act prohibiting registration of marks “which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.”  In other words, the USPTO rejected The Slants because the word slant can be used as a pejorative to disparage Asian people, which is precisely why the band adopted the name in the first place.  (Readers may have seen headlines stating that the Supreme Court ruled in favor of the trademark status of the much-debated offensiveness of the Washington Redskins name; but in fact, the Redskins matter is settled by virtue of the holding in this case Matal v. Tam.)

When artists or other speakers, who represent particular ethnic groups, reclaim disparaging terms, it usually serves as a very powerful way to diminish the harmful force of the words themselves.  For instance, as important as it is to respect the serious history of the ultimate pejorative for African Americans, the way in which a comedian like Richard Pryor weaponized the N-Word* (or for that matter how Mel Brooks satirized it in Blazing Saddles) cannot be overstated for the capacity of those expressions to alleviate social barriers by transposing genuine animosity into self-reflective satire.

The Slants are presumably following in this tradition, which does not mean that some people still won’t be offended by the name; but as Monday’s Supreme Court ruling affirms, an agency like the PTO may not consider the prospect of offense when registering a trademark without violating the First Amendment. As a result of this case, the disparagement clause (§1052(a)), which has been part of the Lanham Act since its passage 71 years ago, has now been declared unconstitutional.  Whether this has further implications for other clauses in the act remains to be seen.

The outcome in Tam has reasonably been viewed as a First Amendment victory, a reminder that the government has no business making judgments about private speech, and also a recognition that a trademark can absolutely be a form of expressive speech.  In past cases, the courts have held that the denial of a trademark is not a violation of speech because the lack of registration does not prevent a party from using a desired mark as expression.  A key difference in this case is that the government sought to argue that registering trademarks is analogous to government subsidies (e.g. grants from the NEA), and, therefore, the reistration of trademarks is a form of government speech.  All eight justices disagreed (Justice Gorsuch was not part of the ruling).

In circumstances like federal or state grants, the parties responsible for administering those subsidies may impose judgments regarding potential disparagement; and in fact, we would generally hope that they do so.  It is also not a violation of law for the government to spend public dollars to communicate a one-sided message, like an anti-drug or consumer safety campaign.  In fact the Court observes in this decision that demanding neutrality of government in speech would render it dysfunctional.  And although most of us wouldn’t want to see public dollars spent with the purpose of ridiculing or provoking bigotry against a particular race, culture, religion, nationality, etc., it cannot be denied that government officials and agencies have done all of these things at various times in our history.

Regardless, the PTO’s argument in Tam that the registration of a trademark is tantamount to government speech by way of subsidy was first rejected by the District Court and then upheld by the Supreme Court. From the decision …

“Contrary to the Government’s contention, trademarks are private, not government speech.… for if private speech could be passed off as government speech by simply affixing a government seal of approval, government could silence or muffle the expression of disfavored viewpoints.”

Or as it was stated in a slightly more amusing fashion …

“It is thus farfetched to suggest that the content of a registered mark is government speech, especially given the fact that if trademarks become government speech when they are registered, the Federal Government is babbling prodigiously and incoherently.”

There’s probably a website somewhere insisting that the government is speaking in the coded language of Cheetos®, Tide®, and Red Bull®; but tinfoil hats aside, the decision in this case may have broader implications for other IP, particularly copyright. Specifically, the Court seems to have indirectly weighed in on a somewhat novel proposal from the libertarian right that intellectual property is a government subsidy.  In fact, the District Court in this case, made a direct comparison to copyright law in stating, “…the government would be free, under this logic, to prohibit the copyright registration of any work deemed immoral, scandalous, or disparaging to others.”

In other words, arguing that the registration of trademarks is a form of government speech through subsidy would, by extension, empower the government to censor speech through the copyright registration process.  Nevertheless, it has been in vogue for a few years now to describe copyright as a government-granted subsidy to authors; and then, by logic of the straw man, to assail the regime as a “federal regulation” that is holding back “innovation.”  It is an idea that appears to convene allies among the anti-corporate left and the anti-regulatory right; and lately, when I see that kind of agreement between ideological opposites, I tend not to conclude “strange bedfellows” so much as to assume that both sides are just wildly misinformed and not considering the implications of their position.

Of course, this “government subsidy” idea goes back to that larger debate over IP as natural right vs. IP as a purely utilitarian legal framework.  For now, though, in upholding Simon Tam and his friends’ right to trademark their band name (offensive or not to some people), the Supreme Court has provided an important lesson in the nature of American free speech and placed the government in its proper role as neutral provider of public services available to all citizens on equal terms.

See also:  Terry Hart’s Copyhype post from 2016.

*On a side note, the rap band N.W.A trademarked its name.