This chapter examines the intersection of artificial intelligence and the right of publicity, with a particular focus on deepfakes. It explores the concept of the right of publicity, its historical development, and its relevance in the digital age. The chapter delves into the legal challenges posed by deepfakes, which can manipulate individuals’ images and voices for malicious or commercial purposes. The chapter closes by discussing potential legal remedies and regulatory approaches to address the risks associated with deepfakes and to protect individuals’ rights of publicity.

Since the advent of ChatGPT in November 2022, public discourse has intensified regarding the intersection of artificial intelligence and intellectual property rights, particularly copyright. Large language models (LLMs) like ChatGPT and Gemini have sparked debates about what deserves copyright protection and what constitutes copyright infringement. Key questions arise: Are LLM-generated outputs original enough to merit copyright protection? And do they infringe upon existing copyrighted works used in their training data? This chapter delves into these issues, examining the legal and ethical implications of training LLMs on copyrighted material. The chapter also explores the concept of fair use, the potential for transformative use of copyrighted works, and the evolving landscape of copyright law in the age of AI.

Generative AI promises to have a significant impact on intellectual property law and practice in the United States. Already several disputes have arisen that are likely to break new ground in determining what IP protects and what actions infringe. Generative AI is also likely to have a significant impact on the practice of searching for prior art, creating new materials, and policing rights. This chapter surveys the emerging law of generative AI and IP in the United States, sticking as close as possible to near-term developments and controversies. All of the major IP areas are covered, at least briefly, including copyrights, patents, trademarks, trade secrets, and rights of publicity. For each of these areas, the chapter evaluates the protectability of AI-generated materials under current law, the potential liability of AI providers for their use of existing materials, and likely changes to the practice of creation and enforcement.

The statutory or common law right of publicity recognizes a right in individuals to control the use of their name or likeness for commercial purposes. The right enables an individual to sue to punish or prevent such commercial uses. However, with the First Amendment in the background, both state legislatures and courts recognized a sub-constitutional “newsworthiness” exception. This exception permits the traditional press to use photos or names, even though used for the purpose of making profit, when they are deemed newsworthy.As a result, the traditional institutions of the press are largely exempted from this cause of action while purely commercial uses of names or likenesses remain the target of the claim. Amazingly, at no point have courts enforcing the right of publicity given serious consideration to the implications for its constitutionality of the Supreme Court’s development of the commercial speech doctrine. This chapter argues that recognition of the commercial speech equivalency principle applies nowhere more forcefully than in this instance. A commercial advertisement will often provide information about individuals to the public that would fall under the newsworthiness exception for the traditional press.To the extent that commercial speech provides the exact same information to the exact same audience, it is not clear why statements by the traditional press receive quasi-First Amendment protection while purely commercial expression does not. Hence it is illogical not to provide the same protection to purely commercial speech. To the argument that commercial speech receives reduced protection because its goal is profit, the obvious response is that the profit-making press possess the very same commercial goal.