It has been nearly three years since I wrote a piece urging the passage of a federal right of publicity act that provides notice and takedown of unauthorized deepfakes of a recognizable person (with Eric Goldman authoring counterpoints). This week, social media is ablaze with news of a potential violation of right of publicity: OpenAI allegedly using Scarlett Johansson’s voice as the “Sky” voice of ChatGPT without her authorization. The Senate is considering a discussion draft of the NO FAKES Act, which would provide a limited federal right of publicity to prevent unauthorized digital replicas of a person, like that ScarJo alleges she experienced. The Senate Committee on the Judiciary heard testimony on the topic on April 30, 2024 and is continuing to rework the draft. In the meantime, state law applies to govern these issues. Should we have a federal right that encourages takedown of unauthorized digital reproductions of a person?

On Feb. 29, 2024, Elon Musk brought suit against Sam Alman, Gregory Brockman, OpenAI, Inc. (OpenAI’s non-profit arm) and more over OpenAI’s development of what Musk asserts could be artificial general intelligence (AGI) and alleged misuse of AGI for for-profit purposes. Musk asserts that OpenAI’s for-profit activities, especially if they have reached the point of AGI, are a breach of contract and breach of fiduciary duties to Musk, who donated to OpenAI Inc. under the belief that the funding would be used exclusively for non-profit purposes including ensuring that AGI is not solely in the hands of mega-corporations.

OpenAI and Microsoft separately responded to the lawsuit brought by the New York Times with a motion to dismiss. OpenAI seeks dismissal of NYT’s claims, urging that New York Times manipulated OpenAI’s coding to produce the result it complains of and asserting that New York Times slept on its rights by filing in 2023 instead of when training began. Microsoft similarly argues that it cannot be held liable for unknowing contributory infringement and that NYT's unfair competition claims are preempted by the Copyright Act.

A new breed of artists is using generative artificial intelligence tools like DALL·E, Midjourney, Firefly, and ChatGPT to create artistic works. Do these creations belong to the artists or the public domain? Do creators who use generative AI maintain copyright in their creations?

Inauthentic media depictions can harm a person’s privacy and reputation and pose a risk to broader society, as well. “Deepfake” technology allows the creation of a type of inauthentic media using “deep machine learning” techniques, using a computer to quickly swap or simulate faces, voices, and movements. Professor Christa Laser argues that Notice and Takedown procedures available in copyright law can be expanded to protect persons from deepfakes.