Dale Nelson Pens Forbes Article Exploring Whether Trademarks Can Protect Celebrities Against AI Misuse
Dale Nelson recently authored a Forbes article entitled “Taylor Swift And Matthew McConaughey Combat AI Misuse. Why Trademarks Aren’t An Easy Solution,” exploring trademarks as the latest legal tactic celebrities are using to combat the misuse of their names, voices, images, and catchphrases in AI-generated audiovisuals.
In her article, Dale highlights specific protections that are already in place to protect against AI misuse, including Screen Actors Guild agreements, the Copyright Act, rights of publicity protections, Lanham Act §43(a) Protections, and privacy protections. Trademarks, which have recently been filed by Matthew McConaughey and Taylor Swift, could serve as a supplemental layer of protection for commercial activity. Dale notes that trademarks, in theory, could offer celebrities broad protection, noting, “…the infringing use need not be an exact match; if a trademark owner can show that the use of mark that is confusingly similar to one’s trademark, and is used on goods or services that are sufficiently related to those in the registration, then infringement can be found.”
However, limitations on what constitutes infringement would vary case by case. For example, Dale explains “…if someone decides to recreate Matthew McConaughey’s voice saying “ALRIGHT, ALRIGHT, ALRIGHT” and use it to sell self-help or spirituality services, that would seem to infringe his trademark, since the mark matches the one covered by the registration, the services are the same as those covered by the registration, and the use is a trademark use.” However, use of the same trademark to promote legal services could be a gray area if the “trademark doesn’t match any of the registrations, and the services do not match those covered by any of the registrations.” Still, the legal validity of consumer confusion arising from similarities in deepfakes and AI-generated content remains unknown. While only time will tell the effectiveness of trademarks, for public figures who rely heavily on the economic value of their persona, Dale notes there is no harm in proactive protection.