Pryor Cashman Partner Ross Bagley authored an article for Law360 discussing the necessity of a federal right of publicity that preempts state law, particularly in the age of generative AI and deepfakes.

In “Considerations For Federal Right Of Publicity As AI Advances,” Ross analyzes the challenges presented by existing right of publicity laws:

With respect to choice of law, some states' courts apply the law of the state where the right was infringed. Some apply the law of the state where the injury was suffered. Some look to the state where the likeness gained commercial value, and some consider which state has the most significant relationship to the dispute.

[…]What is more, each state has differing substantive laws. In some states, the right is protected by statute. In others, it is protected at common law. Some states apply law from both sources, and some have no recognized rights at all. Some states protect only those identityholders who can show commercial value. Some protect only a name or image, and others extend protection to include a voice, signature or other distinguishing features.

Ross also examines the various issues that lawmakers should consider when defining a federal right of publicity, including transferability, post-mortem rights and descendability, special protections for performances, statute of limitations, and more.

Read the full article using the attached PDF above or the link below (subscription may be required).