Indie Filmmakers Urge Senate IP Subcommittee to Take Caution in Considering Federal Right of Publicity

The Film Independent and the International Documentary Association (IDA) sent a letter to the  Senate Subcommittee on Intellectual Property Tuesday, asking the Subcommittee to ensure that any federal right of publicity it may be considering as an answer to problems raised by generative AI artificial intelligence (AI) include an express exemption for creative works.

The letter, penned by the law firm Donaldson Callif Perez, came in response to the Subcommittee hearing held on July 12, 2023, during which witnesses floated the idea of creating a federal right of publicity or an anti-impersonation right as a solution to concerns that generative AI could mimic artistic styles. Such a right would arguably provide more consistency and coverage than the current framework of state right of publicity laws, according to the testimony.

But the IDA letter said that “the extension of right of publicity to include creative works as discussed at the Senate Judiciary hearing…would have a disastrous impact on artists’ rights under the First Amendment.”

While the organization supports a federal right of publicity in theory, it advocated for an explicit carve out for expressive works in order to minimize a chilling effect for independent filmmakers that would require filmmakers to obtain permission from individuals in order to reference them in any way in their films. “Such a requirement would effectively chill artists’ freedom of speech and only allow for the creation of expressive works about individuals that the individuals deem favorable,” said the letter.

The topic of the July 12 hearing was the intersection of AI developments and intellectual property rights, with a focus on copyright. Senators pointed to the example of a February 2023 deepfake video of Senator Elizabeth Warren to argue in favor of a federal right of publicity that would include the availability of injunctive relief and monetary damages.

But it was four of the five witnesses’ proposal that the breach of a federal right of publicity should also apply to creative works that has the IDA worried, said the letter. Pointing to the language of existing state right of publicity laws in places like Nevada and California, it explained:

“[E]ven in states that have established a right of publicity or similar cause of action, a majority of these states have recognized that an individual’s right of publicity must not infringe upon the public’s right of free speech under the First Amendment and explicitly exclude creative works from the coverage of the right of publicity.”

According to the letter, as of July 2023, the independent film industry represents $1 billion of the total domestic box office of $5.83 billion, fueled primarily by two recent major indie successes: Sound of Freedom, with a domestic revenue of over $164.0 million, and Talk to Me, with a current revenue of over $22 million.

Image Source: Deposit Photos
Author: zager
Image ID: 11533758