Everything’s About AI, Even This Case About AI-Free “Avatar”

Sterne Kessler director and head of the Trademark & Brand Protection Practice Monica Riva Talley shared her thoughts with Law360 on a recent case regarding use of an actor’s likeness that raises questions on protections against unauthorized AI-generated content.

Talley said, “This case may help define whether the use of AI systems trained on a real person’s features can give rise to right of publicity or similar claims based on the unauthorized use of biometric characteristics.” She continued, “As generative AI becomes more prevalent in entertainment and advertising, courts will increasingly need to determine whether outputs derived from real human inputs — such as facial structure, voice or other identifying traits — constitute actionable uses of identity.”

She also outlined the parallel between the actor’s arguments to how AI companies use data as inputs to train their AI models. “The plaintiff’s theory — that her facial features were effectively extracted and embedded in a digital character used for commercial purposes — mirrors, in important respects, how generative AI systems are trained on and reproduce human features.” she said. “If courts accept that this type of nonliteral, derivative use is sufficient to constitute a use of identity, it could expand the scope of right of publicity claims in the AI context.”