As we all know, social media has taken the world by storm. Not surprisingly, it has influenced trademark and copyright law, such as the related right to publicity. A recent case involving the voice of an actor used in the popular TikTok app is iconic for the time. Actor Bev Stending is suing TikTok for using his voice, simulated by artificial intelligence (AI) without her permission, to serve as “TikTok’s female computer-generated voice.” The case, which was settled last year, illustrates how the law has been adapted to protect the rights of artists in the face of exploitation through AI, as well as the limits of existing legislation to protect works created by AI.
Stending explained that he thinks of his voice “as a business” and seeks to protect his “product”. Applications such as TikTok accept these “products” and enter them into an algorithm without the permission of the original speaker, thus impairing the ability of creative professionals to profit in an era of widespread use of the Internet and social media platforms.
Someone’s voice (and aspects of his or her personality, such as a photograph, image, or the like) can be protected from what is called a “right to publicity.” This right does not allow others to appropriate someone’s identity – but only when the appropriation is for commercial purposes. In the case of TikTok, there was commercial use, as TikTok took advantage of the use of Standing’s voice to “tell” videos to its users (with some consumer videos apparently involving “obscene and offensive language”). In her complaint, Stending alleges that TikTok violated her right to publicity by using her voice to create the AI voice used by TikTok, and cites two other allegations: a false designation of origin under the Lanham Act and a violation of copyright as well as related state legal claims. The allegation of a false designation of origin included whether Standing’s voice was so recognizable that its appropriation, on the other hand, could confuse consumers as to whether Standing had authorized the use of Tik Tok. The copyright complaint was possible because Stending created the original voice files for a company that hired her to record translations into Chinese. TikTok subsequently acquired the files, but failed to obtain a license from Standing to use them, as TikTok was legally obliged to do so, as Standing was the original creator (and therefore copyright owner) of the voice files.
As with other historical technological innovations (one of the earliest is the print media), the law often plays catch-up, but has proved surprisingly adaptable to new technologies. Here Stending managed to substantiate three legal theories (six if I count the claims of unfair competition of the state and common law), so it seems that artists are well protected by existing legislation, at least if they claim that AI was used to copy their work or personality.
On the other hand, the case for the protection of creative expression, produced in whole or in part by AI, is much more difficult. Some believe that AI deserves its own form of copyright, as innovative technology increasingly creates its own music and sounds. Currently, the protection of these sounds is limited, as only people can be identified as authors for copyright purposes. Ryan Abbott, a professor of law and health sciences at the University of Surrey in the UK, is trying to sue the U.S. Copyright Office for registering a digital work of art made from a computer with AI as the author. The fear, says Abbott, is that without rights to these sounds, innovation will be stifled – people will have no incentive to create AI works if they cannot protect them from unauthorized use.
© 2022 Norris McLaughlin PA, All rights reservedNational Review of Law, Volume XII, Number 154