An AI no-no: Misappropriation of public image for commercial use

It has been reported in the Guardian newspaper that an AI-generated image and voice of Scarlet Johansson has been published without authority for commercial gain. The article can be viewed here: Scarlett Johansson takes legal action against use of image for AI | Scarlett Johansson | The Guardian

The advertisement referred to is arguably a blatant breach of the actor’s rights in her own image. The reported advertisement video begins with scenes of the real actor and then transitions into the fake AI-generated actor (image and voice) to promote an App, Lisa AI: 90s Yearbook & Avatar, for commercial benefit. Unfortunately, the advertisement did so without authority or agreement from the actor.

This type of misappropriation needs to be distinguished from trademark rights or right to privacy. Those are separate considerations. It should also be distinct from the publication rights of public figures in a magazine or newspaper as the particular use, in this case, was in a private commercial context for gain of a third party.

Depending on the jurisdiction, there are statutory and common law personal rights (i.e. the tort of passing off) providing a cause of action to prevent such conduct with available remedies such as injunctive relief and damages. There would also be remedies in the civil law jurisdictions along the same lines.

Any use of an image or video for a commercial use needs to be vetted carefully for any possibility of creating a relationship or endorsement without authority. A good example of this is in the sports industry where one image can carry multiple property rights such as rights of the athlete, team rights, venue rights and third-party mark rights.

In this case, whilst the misappropriation appears to be quite blatant, what happens if the AI-generated image is scraped together from several sources without the intention to misrepresent a certain person? The AI-generator may scrape together an image of a person and voice that the publisher did not intend and may have never heard of. Regardless of intent, the result in terms of the causes of action and available remedies may be the same.

Any publication of AI-generated material for a commercial purpose will come at risk if the content is not scrutinised and verified in terms of origin and assessable permission of use.

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