Entertainment and Media Guide to AI

Legal issues in AI part 2 - Gavel icon

Read time: 6 minutes


Rights of publicity safeguard a celebrity’s name, image, likeness, voice, and other unique personal attributes from unauthorized commercial use. However, the legal landscape is diverse and often complicated, with significant differences in treatment across jurisdictions.

United Kingdom

In the UK, the closest equivalent to the right of publicity is a legal concept known as passing off. Initially developed by courts to prevent individuals from falsely claiming that they are selling goods belonging to someone else, passing off has evolved to protect celebrities’ images or names from unauthorized use in commercial contexts.

In most passing off cases, the claimant must satisfy a three-part test called the “classical trinity” test. This test requires the claimant to demonstrate the following:

  • They have a reputation or goodwill associated with their name or image.
  • There has been a misrepresentation to the public, leading them to believe that the goods or services being offered are associated with the claimant.
  • The claimant has suffered some form of harm or damage.

Recent passing off cases involving celebrities have predominantly focused on false endorsement claims. Passing off can potentially assist a celebrity in challenging false product or brand endorsement through the unauthorized use of an AI-generated emulation of their likeness. However, when AI is used to create a synthetic performance that resembles an artists voice or likeness, the situation becomes more complex.

Previous passing off cases involving false attribution by authors are particularly relevant to these uses.

In the case of Sim v Heinz, a court dismissed an actors request for an injunction to prevent a food advertisement from using an imitation of his voice. However, the judge acknowledged the concern surrounding the use of someones voice without consent and highlighted that allowing such actions solely for commercial gain would be a significant flaw in the law.

Proving passing off is notoriously challenging. Unfortunately, unless the law adapts to these evolving technological developments, relying on passing off to object to the synthesized use of an artist's voice or likeness will be an uphill battle. The artist would need to demonstrate sufficient reputation or goodwill associated with their voice or likeness, which is typically limited to highly famous artists, and that a substantial portion of those accessing the AI-generated content would be deceived into believing it is authentic. This task becomes more difficult when the content explicitly states that it is not the work of a specific artist but an AI performance.

Since passing off is unlikely to assist the majority of performers who are not widely known to the public, these individuals are potentially exposed to having their image or voice or likeness used commercially without authorization. For instance, a successful DJ could utilize a synthesized voice trained on a talented but unknown singer to produce a new track.

Key takeaways
  • Improper use of AI-generated celebrity voices and likenesses can trigger challenges under UK and U.S. laws
  • Post-mortem rights of publicity differ significantly from those of living individuals in terms of range, duration and accessibility