USA – NEW YORK Trends and Developments Contributed by: Nancy E Wolff, Scott J Sholder and Elizabeth Safran, Cowan, DeBaets, Abrahams & Sheppard LLP
cas.” (Copyright and Artificial Intelligence , Part 1: Digital Replicas at iii, US Copyright Office (July 2024).) Specifically, the Office recommends that this protection be extended to all individuals across their lifetimes – not merely celebrities – with lim - ited postmortem protection. Protection should ward against any hyper-realistic replicas that the public would be unable to distinguish from authentic depictions of an individual, whether AI-generated or through other means. Per the Office’s recommendation, liability would attach as a result of knowingly distributing or making such replicas available, not merely from their creation, and not merely in instances where such creation was without knowledge that it was unauthorised. The Office also recommends adopting existing safe harbour protections for online service providers that might unwittingly host the replicas, such that their removal after effective notice could safeguard providers from liability. Their recommendations acknowledge, as well, the need for a balancing framework to address free speech concerns, with carve-outs, however, for instances where unauthorised rep - licas would defame, defraud, or commercially mislead others. Noting the patchwork applica - tion of First Amendment principles in existing case law in this arena – often in cases involving rights of publicity (as discussed further below), in which courts across the country use at least five different balancing tests that lead to conflicting outcomes – the Office stressed the need for the uniformity that a federal law and approach to this widespread issue would create. The federal law, per the Office’s recommendation, should, however, accommodate the interests of states in tackling this issue head-on, by providing a legal floor that leaves states free to enact additional protections, particularly considering that rights of publicity and privacy, which inextricably tie, in
to the issue of digital replicas, are already gov - erned by state law. Existing legal frameworks and state protection The Office’s recommendation for a federal framework to protect against the harms posed by digital replicas comes amidst a variety of existing legal frameworks, predominantly at the state level, that may already offer some protec - tion against digital replicas, considering their purpose in guarding individuals’ rights of priva - cy and publicity. For example, various doctrines found in common or state law protect against intrusions into individuals’ privacy, aiming to shield an individual’s right “to be let alone” (see Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 195 (1890)); ie, the right to be left alone, as it would usually be termed nowadays. In common law, these doctrines include the torts of false light and appropriation of name and likeness, which protect against offensively falsely representing individuals before the public, spreading misinformation against them publicly, or appropriating their identity or reputation for benefit. While these frameworks may lend some support to persons faced with unauthorised AI- generated replicas of themselves, particularly those of a sexual nature, there are limits to how far the doctrines can likely stretch to provide legal support in this novel context. For example, false light claims require the presentation of an individual in a false light to be “highly offensive” to a reasonable person; not all replicas, particu - larly those that are merely untruthful, would rise to this level. Another downside is that, as dis - cussed above, these doctrines are not always uniformly interpreted, with courts throughout the country setting forth inconsistent standards. For example, some courts require the appropriation
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