Proposals by MPs to introduce a new form of "personality right" in U.K. law to help artists and celebrities fend off fake material generated by AI might not actually offer any protection beyond that already established in domestic legislation, analysts say.
"It is questionable whether adding protection for personal images to the U.K. IP pantheon would produce a significant impact beyond that provided by defamation and tort," Hayley Brady, a partner at Herbert Smith Freehills LLP, said. "But if it did so, this would be a significant shift in protection of the individual."
A cross-party group of MPs and peers published a report early in May calling on Parliament to introduce a swath of new laws to rein in artificial intelligence, focusing on protecting creative workers from generative AI programs.
Among these was a proposal that the government should introduce a "personality right" that would protect an artist's voice, image, name and likeness from misappropriation and false endorsement. An individual can seek remedy under English common law for the misuse of these features by pursuing a claim for passing off — but there is currently no form of intellectual property protecting these rights.
And the issue of misappropriation and false endorsement by using a person's likeness has already been considered by the country's courts, according to IP lawyers.
Rihanna successfully persuaded the English courts in 2015 to pull garments from clothing outlet Topshop that featured a photo of her. The singer had argued that the clothing was an attempt to pass off her image.
Selling a T-shirt bearing an image of a famous person is not, in itself, passing off. But the Court of Appeal held that Topshop had marketed the T-shirt in a way that led consumers to believe that it was officially approved by Rihanna.
Rihanna's position as one of the most famous recording artists in the world, her connections to the fashion world and the fact that Topshop had made a "considerable effort" to emphasize its connection with famous people, was enough for the justices to rule that the use of Rihanna's image amounted to passing off.
But the court emphasized that the case will turn on the facts, and that an artist or celebrity has no guarantee of combating the use of their images in passing-off claims as they must first establish that their likeness carries goodwill.
A Simkins LLP partner, Nick Eziefula, and associate Andrew Wilson-Bushell, said that the judgment "clearly stated that such protections are not guaranteed.
"It's up to the artist to prove the facts in each case: use of an image of a person on a garment is not, of itself, passing off, particularly where the item is overtly held out as not being an officially endorsed product … which makes it hard to establish any misrepresentation," they added.
But, although the courts have already weighed in and set precedent on the issue, the introduction of a formalized right for a personality or image could be necessary because of the growing threat of fake endorsements from generative AI. Rihanna's ability to pursue this case was unusual, given her status.
Introducing a specific personality right is a move that is probably intended to "lower the threshold for more individuals to seek recourse," according to Alex Shandro, a partner in A&O Shearman's AI advisory practice.
And Rachel Montagnon of Herbert Smith Freehills LLP said, "There are a combination of convenient factors that allowed Rihanna to assert her rights to stop Topshop selling a T-shirt with her image on it, but in other less favorable circumstances this would have been much more difficult.
"Hence the call for image protection or a more formal 'image right,' which in the context of deep fakes seems even more compelling," she added.
But lawmakers must be realistic, if such a right is introduced, about how such protections would work, and must consider the implications that these image rights could have beyond protection against deepfakes and misrepresentation by AI.
Lawyers believe that regulators would also have to consider just when these rights would kick in, and when they would be enforceable.
Shandro asked what the measures of damages would be and how much of a resemblance would be required for a construction to be considered a "likeness." Would a personality right apply after the death of an individual, and would the personality right require causation, he asked.
--Editing by Ed Harris.
Clarification: This story has been updated to amend the position of Andrew Wilson-Bushell at Simkins.
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