In the United States, intellectual property (IP) rights have been a mix of state and federal laws. Patents and copyrights have been under federal law since 1790, with no state involvement. Trademarks and trade secrets started under state law but later got federal protection too. Trademarks have had federal protection since 1870, while trade secrets got it more recently in 2016 with the Defend Trade Secrets Act (DTSA). Unlike patents and copyrights, trademarks and trade secrets still have both state and federal laws applicable.

The Need for Publicity Rights Protection

Publicity rights, also known as Name Image & Likeness (NIL) rights, are about a person’s right to control how their name, image, and likeness are used commercially. These rights started as privacy protections but have grown to cover economic interests, treating a person’s reputation and brand as an asset. With the rise of the internet and influencers, these rights have become more critical, especially with new technology like deep fake AI that can digitally impersonate people.

FAIR: A Proposed Federal Law for Publicity Rights

Adobe has proposed a new federal right called the Federal Anti-Impersonation Right (FAIR). This law would protect people from the unauthorized commercial use of their name, image, or other personal aspects. Adobe believes this law is necessary to protect artists and creators from AI tools copying their style for commercial use. A national law could provide consistent protection, make enforcement easier across states, and potentially lead to international agreements.

Key Questions and Considerations

There are important questions to consider with FAIR:

• Should it protect all people or only famous personalities?
• How do we balance it with free speech and fair use rights?
• How much responsibility should online platforms have?
• Should the law cover only commercial misuse or also protect privacy?

Balancing Commerce with Personal Dignity

Publicity rights began as a way to protect privacy, not just for economic reasons. Any new federal law like FAIR should keep this in mind and protect personal dignity and reputation, not just against economic harm.

References

https://blog.adobe.com/en/publish/2023/09/12/fair-act-to-protect-artists-in-age-of-ai

https://patentlyo.com/patent/2023/07/national-publicity-impersonation.html