Bette Midler, Generative AI and the Right of Publicity | McDonnell Boehnen Hulbert & Berghoff LLP

In part one of this article, we discussed the challenges artists face as they seek to protect their intellectual property from generative AI using copyright law. In part two, we explore a legal approach that may be more relevant.

Where federal intellectual property law may fail in the case of “Heart on My Sleeve,” the state tort doctrine of the right of publicity may step in. In general, the right of publicity prevents the unauthorized commercial use of an individual’s name, likeness, or other recognizable characteristics, such as one’s voice. [1] While only about half of states have distinctly recognized the right of publicity, one important jurisdiction is the state of California. [2]

While the aspect of generative AI is novel in this scenario, the facts are very similar to the case of Midler v. Ford Motor Co. [3] Bette Midler, a famous actress and singer, sued Ford and its advertising agency for airing a commercial where one of her famous songs was used with an imitation of her voice from a “sound alike” singer. [4] The advertising agency even played the Midler recording of the song for the hired imitator and told her to “sound as much as possible like the Bette Midler record.” [5] The Ninth Circuit found in favor of Midler holding that the impersonation of her voice in the advertisement violated her state common law right to publicity. [6] “A human voice is one of the most palpable ways identity is manifested . . . these observations hold true of singing, especially singing by a singer of renown. A singer manifests herself in the song.” [7]

While “Heart on My Sleeve” uses AI as opposed to an imitative singer, the facts are well suited for action under the right of publicity. The AI-generated track was released on streaming platforms like any Drake or The Weeknd song previously released for commercial purposes. It was estimated that the AI-generated song earned at least $1,888 from Spotify alone and may have earned $9,400 globally across all platforms. [8] [9] With the commercial nature of “Heart on My Sleeve”, both artists may have a potential claim against ghostwriter977 and the AI software under their right to publicity in applicable states.

Legal protection for creatives in an evolving generative AI environment is crucial for more than the important proprietary and creative interests. “Heart on My Sleeve” is just one example of the significant number of AI-generated works targeting minority artists’ works and likenesses. [10] This episode builds on a pervasive history of appropriation and marginalization of minority creative communities. That is, misuse of generative AI to imitate artists’ works disproportionately impacts underrepresented populations. If copyright infringement is not an appropriate cause of action for imitative AI-generated works, the law and policy governing the right of publicity must continue to keep pace with new creative technologies and forms of expression. In doing so, the voices and music of artists, including those identifying with minority communities, will be more readily heard, considered, and appropriately valued.

 

[1] Right of Publicity: an overview, Cornell Law School Legal Information Institute, https://www.law.cornell.edu/wex/publicity#:~:text=Only%20about%20half%20the%20states,of%20the%20Right%20of%20Privacy

[2] Id.

[3] Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).

[4] Id. at 461-62.

[5] Id. at 461.

[6] Id. at 463.

[7] Id.

[8] Nichola Rutherford, Drake and The Weeknd AI song pulled from Spotify and Apple, BBC (May 25, 2023), https://www.bbc.com/news/entertainment-arts-65309313.

[9] Stutz, Colin, The Fake Drake AI Song Earned Millions of Streams – But Will Anyone Get Paid?, Billboard (May 25, 2023) https://www.billboard.com/pro/fake-drake-ai-song-earned-millions-streams-get-paid/.

[10] Noah A. McGee, AI-Generated Music is Creating Black Art Without Black Input, Yahoo (June 9th, 2023).

*Taylor Weilnau, an MBHB summer associate, also contributed substantively to this article.

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