August 2nd, 2023

AI and the Issue with Copyright Infringement and Right of Publicity

Artificial intelligence (AI) has taken the world by storm. In 2023, generative AI programs such as ChatGPT, DeepMind, and Midjourney have pushed AI to new limits with groundbreaking technology. These generative AI programs produce original creative content such as computer code, video, images, and text based upon previously identified patterns and structures in the program’s existing data library. As a result, generative AI is beginning to infiltrate the creative world and has been used to generate musical works based upon the voices of famous musicians and new award-winning works of art.

While these developments in AI technology are unprecedented, there is significant uncertainty regarding their use around the world. For the first time since 1960, the American actors’ union, SAG-AFTRA, and the Writers Guild of America (WGA) went on strike simultaneously over a labor dispute with the Alliance of Motion Picture and Television Producers. The use of generative AI has become a critical issue in this ongoing contractual dispute.

Both Hollywood actors and screenwriters have demanded their contracts explicitly include AI regulations to protect their respective works and their likeliness. Without these protections, both writers and actors are concerned that their work and likeliness will be used by production studios through these generative AI programs. While there are protections for creative works and likeliness already enshrined in our legal system, the emergence of AI has caused artists, musicians, and actors to enter unchartered territory to protect themselves and their work accordingly.


Any claim for copyright is protected under federal statutory law, specifically the Copyright Act of 1976. This Act protects original works of authorship that are created in any tangible medium of expression. While the Constitution and the Copyright Act do not explicitly define “authorship” or what constitutes an “author,” currently, the U.S. Copyright Office only recognizes creative works created by a human. Similarly, courts around the country have followed this designation and declined to extend this protection to non-human authors.[1]

It is unclear whether the emergence of generative AI will cause both the U.S. Copyright Office and courts to reconsider whether a non-human can be considered an “author” under the Copyright Act. Recently, the Copyright Office has put out guidance stating that they are unlikely to find the requisite authorship where an AI program generates creative works in response to text prompts as it is not the product of human authorship.[2] However, a recent lawsuit has challenged the human authorship requirement regarding works generated by AI programs. This lawsuit is currently pending before the United States District Court for the District of Columbia.[3] Another lawsuit is pending regarding the use of copyrighted material in developing AI generated literary material.[4]

Further, the United States Congress House Judiciary Committee held a hearing on copyright issues and AI on May 17, 2023. During this hearing, opponents of AI specifically asked the makers and users of these AI tools to adhere to three principles: consent by creators for the use of their works in AI generative media, credit when works are used, and compensation at fair market rates for the use of any human created copyrighted work by AI programs and the output of new derivative works. Currently, it is unclear whether any of these principles will be used in developing any AI related regulations or laws.  

Copyright Infringement

To assert a claim for copyright infringement, a plaintiff must show that a defendant had access to the work and the new work was substantially similar. A common defense for copyright infringement claim is fair use. Under 17 U.S.C. § 107, there are four factors to determine whether something is fair use:    

  1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. The nature of the copyrighted work;
  3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. The effect of the use upon the potential market for or value of the copyrighted work.

Currently, there are numerous lawsuits pending alleging claims for copyright infringement against AI programs.[5] For several of these lawsuits, the AI programs are alleging fair use defenses stating that the works are being used just for training purposes, and not when the programs create anything. These lawsuits will determine whether a fair use defense is applicable for copyright infringement claims against AI programs.

Right of Publicity

The right of publicity protects an individual against unauthorized commercial misappropriation of their name, likeness, or another identifier of their identity, such as their pseudonym, voice, or signature. Unlike copyright, the right of publicity is governed by state statutes and state case law as there is no federal right to publicity that is currently recognized. These laws vary widely from state to state.

In Pennsylvania, the right of publicity is governed under 42 Pa.C.S.A. § 8316, a state statute entitled “Unauthorized Use of Name or Likeness.” The statute requires that there must be a showing of commercial use, which occurs when a person’s identity is used for advertising, promoting, or marketing of any good or service. Further, Pennsylvania courts typically follow the appropriation analysis which states that one who appropriates another individual’s name or likeness for their own use or benefit can be held liable for invasion of privacy.

In the United States, other states, such as California, are currently dealing with lawsuits regarding unauthorized commercial misappropriation and AI programs.[6] As a result of these lawsuits, there is a chance that state laws and statutes regarding right of publicity could be modified to protect against misappropriations by AI programs.

As AI becomes the subject of business contract negotiations and related copyright and privacy issues, businesses should consider consulting attorneys to ensure they understand this field and remain in compliance. Luckily, the attorneys at Gross McGinley are equipped to handle these issues for businesses of all sizes and are happy to navigate this new space with you.

[1] See Naruto v. Slater, 888 F.3d 418 (9th Cir. 2018).

[2] See Copyright Registration Guidance: Works Containing Material Generated by Artificial Intelligence, 88 Fed. Reg. 16, 190 (March 16, 2023) (to be codified at 37 C.F.R. pt. 202).

[3] See Thaler v. Perlmutter, No. 1:22-cv-01564 (D.D.C. 2022).

[4] See Silverman v. OpenAI, Inc., No. 3:23-cv-03416 (N.D. Cal. 2023).

[5] See Anderson v. Stability AL Ltd., No. 3:23-cv-00201-WHO (N.D. Cal. 2023); Getty Images (US), Inc. v. Stability AI, Inc., No. 1:23-cv-00135 (D. Del. 2023).

[6] See Young v. Neocortext, Inc., No. 2:23-cv-02496 (C.D. Cal. 2023).

The content found in this resource is for informational reference use only and is not considered legal advice. Laws at all levels of government change frequently and the information found here may be or become outdated. It is recommended to consult your attorney for the most up-to-date information regarding current laws and legal matters.