Pryor Cashman Partner Benjamin Jaffe, a member of the Media + Entertainment Group and co-chair of the Digital Media Practice, spoke with Law.com about a lawsuit filed by the estate of George Carlin over a "deepfake" comedy special that used artificial intelligence (AI) to bring the late comedian back to the stage.
In "George Carlin-AI 'Deepfake' Lawsuit Could Set New Standards for Celebrities' Rights of Publicity, Industry Veteran Says," Ben comments extensively on the use of AI to generate the work and the potential implications for celebrity likenesses in the future:
"Whereas most of the recent high-profile AI cases have focused specifically on copyright infringement claims (i.e., whether AI generative tools need appropriate licenses to ingest copyrighted material for learning/training purposes, and whether AI-generated content produced from these tools infringes underlying copyrighted material), this case has the potential to establish new standards around how AI may or may not be used to exploit the personal brands of celebrities and what may constitute an improper use of a celebrity's name and likeness."
Ben also talked about possible First Amendment issues that could collide with "right of publicity" law in the case:
"Whether or not a court views the work as being either a sufficiently creative expression of George Carlin's work or sufficiently commenting on or creating a thought piece on his comedy, will likely be a core issue for the court to determine," Jaffe said. "It could be a defense used to show that it was not a improper usage."
Distinguishing between content that enters the territory of "thought piece" or an "imitation of someone" could change the discussion in court, according to Jaffe, because the Dudesy defendants could argue that their comedy special has artistic merit along the lines of a commentary or parody.
"It's one thing for someone to stand up and do an imitation of someone, but when it becomes harder to separate out an individual from someone else because of AI, it creates additional concerns that the court will need to address," Jaffe said.
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