Season 5 Ep #4 Artificial Intelligence: Is Imitation Still Flattery? Part 1
In this episode of IP Goes Pop!, hosts and Volpe Koenig shareholders, Michael Snyder and Joseph Gushue, introduce a two-part series focusing on artificial intelligence (AI) and how it can impact intellectual property (IP) rights in an individual’s persona. The episode starts with a look at generative AI, explaining how it can create text, images, and voices that appear to closely mimic human attributes. This sets the stage for a deeper discussion on the right of publicity, a legal doctrine that protects an individual's likeness, voice, and personal attributes from unauthorized commercial use.
To begin, the hosts unpack AI's portrayal of human beings in pop culture, citing iconic movie examples such as Terminator 2: Judgment Day, S1m0ne, and Her. These films illustrate AI's potential to replicate human beings, raising questions about the intersection of technology and IP. For instance, S1m0ne explores the concept of a fully synthetic actress replacing human actors, while Her delves into the emotional complexities of a human falling in love with an AI operating system. These examples lay the foundation for understanding the real-world implications of AI in the realm of IP.
In this episode of IP Goes Pop!, hosts and Volpe Koenig shareholders, Michael Snyder and Joseph Gushue, introduce a two-part series focusing on artificial intelligence (AI) and how it can impact intellectual property (IP) rights in an individual’s persona. The episode starts with a look at generative AI, explaining how it can create text, images, and voices that appear to closely mimic human attributes. This sets the stage for a deeper discussion on the right of publicity, a legal doctrine that protects an individual's likeness, voice, and personal attributes from unauthorized commercial use.
To begin, the hosts unpack AI's portrayal of human beings in pop culture, citing iconic movie examples such as Terminator 2: Judgment Day, S1m0ne, and Her. These films illustrate AI's potential to replicate human beings, raising questions about the intersection of technology and IP. For instance, S1m0ne explores the concept of a fully synthetic actress replacing human actors, while Her delves into the emotional complexities of a human falling in love with an AI operating system. These examples lay the foundation for understanding the real-world implications of AI in the realm of IP.
Shifting to an overview of generative AI, Michael and Joe explain its capabilities and how AI models are trained using vast amounts of data. Generative AI, which had its watershed moment with the launch of OpenAI's ChatGPT, could be described as “predictive text on steroids.” These models are trained with “open source” data, including articles, books, and images, enabling them to generate novel text and images based on user prompts. The AI application is then essentially producing human-like outputs, highlighting the complexities of AI in the context of IP rights.
The potential for AI to capture human attributes raises concerns regarding the right of publicity. In a way, the emergence of generative AI is history repeating itself. Back in 1890, the “hip new technology” was the rise of still photography in newspapers, where images could “immediately” be posted treading on people’s rights to control their likenesses. More contemporary cases such as Bette Midler vs. Ford Motor Company and Tom Waits vs. Frito-Lay, expanded the right of publicity to include voice and likeness. Most recently, the controversy involving Scarlett Johansson and OpenAI's voice assistant highlighted the ethical and legal challenges posed by AI's ability to replicate human voices. These cases underscore the significance of the right of publicity in the age of AI, where the potential for unauthorized use of personal attributes is greater than ever.
Michael and Joe wrap up the episode by reflecting on the ongoing concerns with new technology and IP rights, noting that these issues are not new but have been recurring throughout history with each technological leap. This episode is Part One of a two-part series. Stay tuned for Part 2, where the discussion will continue on the deeper issues (and deeper fakes) that arise with AI and IP.
Timestamps:
00:52 Episode Overview: Part One of a Two-Parter on Generative AI
02:57 Artificial Intelligences Replicating Human Attributes in Pop Culture
- Terminator 2: Judgment Day (1991)
- T1000
- S1m0ne (2002)
- M3GAN (2022)
- Idoru, 1997 William Gibson
- AI “synthetic” pop star
- Hatsune Miku
- Holographic Performer and Virtual Pop-Star
- Her (2013)
10:37 Defining Generative AI
- OpenAI’s Chat GPT
- Chatbot
- Process of Training Generative Models
- Why Generative AI appears to be human-like
14:55 Introduction to the Right of Publicity
- Historical background on protecting one’s “likeness”
- Protected by state law only (no federal law)
- Harvard Law Treatise Right to Privacy (1890)
- Samuel D. Warren II and Louis Brandeis
- Property in personality: likeness, image, attributes
- Landmark Case
- Expanding the Right of Plublicity
- IP Goes Pop! Hollywood and Whine-IP and the Right of Publicity Season 1 Episode 8
- IP and the Right of Publicity
25:48 Scarlett Johansson and OpenAI’s Sky
32:45 Takeaways & Looking Ahead to Part 2
