As users continue to experiment with generative AI tools, artists are increasingly concerned that use of the tools to mimic their respective “styles” will put them out of business. In addition to the now-infamous AI-generated song that seemed to feature Drake and The Weeknd, digital artists, musicians, actors, writers, and others are seeing their names regularly invoked, without their permission, to generate new works.
Despite the flurry of lawsuits, those new works and the training of the tool itself probably do not infringe the copyright in any work used in the training set – even if the person who used the tool to generate it asked for something in a particular artist’s “style.” And that’s probably a good thing on balance: given the scope and length of copyright, as well as the financial cost of violating those rights accidentally, it’s important to clearly demarcate what is and is not protected, and “style” does not lend itself to clear markers.
But that doesn’t mean the creator of the original work has no recourse. As the premise of at least one of those lawsuits shows, there’s an alternative legal theory: publicity rights. But that legal approach comes with its own risks – especially if, as some are proposing, it is enshrined as an expansive federal right.
The right of publicity is an offshoot of state privacy law that gives a person the right to limit the public use of her n
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