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George Carlin estate sues creators of AI-generated comedy special in key lawsuit over stars’ likenesses
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- Authors
- Winston Cho
- Published
- Jan 26 2024
- Word count
- 1245 words
I think the use of his voice and likeness has a better chance of actually winning in court than the copyright infringement side -- but of course that's precisely because the copyright infringement side of this is really interesting and novel legally. The fact that it was fine-tuned on one artist's body of work makes it particularly interesting I think, even more so than the suits against OpenAI for use of data in training an underlying huge model. I bet it'll get cited all over the place no matter which way it goes if the copyright side of this makes it to court.
Unfortunately (or fortunately?), it's not actually interesting/novel anymore. The creators of the show have now stated that AI was not involved at all:
IANAL so I don't know how the rest of this will play out, they may still have a case on voice/likeness.
We're going to see a lot of this. It was already a huge thing to claim you had AI doing something when it was just people (mechanical turk being a common phrase i've seen for it) , and now that it instantly gets eyes on your project it will be used more than ever. Already just about every single tech environment is claiming to use AI, just like they claimed to use block chain.
With all that said, the most interesting thing about this is if it's infringement for a human to do it, then it should be even if it was AI, but that'll be for another case to decide it seems.
For any who don't know, this name actually straight-up derives from someone doing something very similar to this back in the 1700s. The historical "Mechanical Turk" was a supposed-robot that could play chess very well, better than most humans, and it got paraded all over the world. Of course, given that we didn't develop real chess engines until about 200 years later, it's not quite so surprising that there were human chessmasters inside.
Of course the fact that Amazon named a service Mechanical Turk doesn't help when it comes to using the term more generically these days :c
Your statements have led me to think about something that further convolutes my lack of a stance on the subject: if a human watches all of Carlin's body of work and then writes a skit using his voice, it is typically considered fair use. Would it then not be considered the same for an "AI" to do so? Is the issue then how the work was obtained and then into the AI?
I am personally leaning more towards the mind that a generative AI should in itself be considered a derivative work and/or compilation of all of its training materials, instead of us trying to think about them the same way we would think of a human training on materials. But honestly, I don't really know.
Ah yeah, if that's true obviously the copyright side is a no-go. The voice/likeness stuff I think they still have a solid case on, perhaps even a stronger case than they would have if it were an AI, since it's another human being's comedy writing being passed off as having been somehow derived from George Carlin's body of work, though I don't know as much about the actual law in that area. Still I'm interested in following the case regardless, it's exactly the sort of case that interests me.
So its artificial artificial intelligence then.
I agree re. voice/likeness making it a strong case-- regardless of whether it was done using AI or not. Tom Waits sued Frito-Lay for using his voice in a Doritos commercial (they hired an impersonator for this) and was awarded about $2.5M in damages in 1990.
Not a lawyer, but in the interests of discussion:
Kelly Carlin is suing in California, but it's in federal court. I took a peek online, but most of what I found seemed to keep saying it's a state level piece of law (likeness protection). Because California does have a protection to your likeness on their books. Federally, there's no right to your likeness. There's some mentions of "right of privacy" which is apparently federally tied to likeness in some way, but it doesn't look super strong to me.
The creators of Dudesey have apparently already admitted (though I think it was to the NY Times, which probably means it's not under oath yet) the AI did not write the material. So that aspect of the case, if true, is gone. Reducing it to a simple "you're horning in on my dad's stuff" matter.
And that's where I think she very well might not have a strong case either. The routine opens with a very clear, explicit disclaimer saying "What you're about to hear is not George Carlin. It's my impersonation of George Carlin."
Impersonations aren't illegal, and they're not necessarily a violation of copyright either. Comedy is absolutely littered with impersonations, and not just of celebrities; sometimes comedians impersonate each other. Do they regularly impersonate other comedians for an entire routine, that I'm not sure about, but even if this does constitute something new in that area I don't particularly see how it changes the basics; impersonations are allowed under copyright.
And even if we ignore the impersonation aspect, there's no law or no copyright violation to write in Carlin's style. Or even to perform in his style. "Look and feel" is not copyrightable. They'd be in violation of copyright if they lifted, verbatim, a Carlin routine, or sections of one. But to go through his material and use his word choices, his subject matter, his style of outrage and logic and so on ... not illegal and not a copyright violation. For a human or an AI.
Now California does have a likeness law. Kelly might have a stronger case in state court, vs federal on the use of the name, but we're back to that disclaimer. Anyone can use George Carlin's name in a title. I could put out a book titled "Shit George Carlin Might Say" and while I might get sued, because lawyers and people with money love to sic lawyers on people without money, I'm not convinced it's anything remotely close to a slam dunk case against me. Especially if I subtitled the book "at least, things I think he might have said" or something similar. And opened it with a disclaimer that made it clear George had nothing to do with the book.
People's names, especially famous people, get used in titles of works, or even for the basis of a work, all the time. It's a definite grey area to create something about a specific "nobody", like your next door neighbor; but it's been previously ruled that "famous people" give up a certain level of privacy when they become famous. Especially if they seek out fame, like being a celebrity. It's not like Carlin shunned the spotlight; he spent an entire career getting on stage, giving interviews, and so on. He meets the definition of a celebrity. So it's definitely not clear that he (or his estate) can unilaterally demand no one can reference him.
If Dudesey had forgot that disclaimer, and if they'd run around trying specifically to delude or mislead people into thinking "this is long lost stuff Carlin never performed before his death", slam dunk against them. Open and shut I'd expect. But they didn't do that. They chose to impersonate him. Which is allowed. Did they do it because it got headlines? Of course. Marketing. Publicity. The reason's obvious.
The AI aspect (which they apparently lied about) just made it juicier PR. But if it had been Will (or any other human) who got up on stage and said "this is my impersonation of Carlin" and delivered that routine on stage ... I really don't think that would get past summary judgement (against Kelly) if she sued. If an AI had written it (which, again, apparently wasn't the case) the calculus doesn't change. "Look and feel" is not copyrightable.
I tried to do a bit of digging into it. I assume that the California publicity law they're talking about is Civil Code Section 3344, but I don't think they have a case. In particular, the rub would be
The dudesy video was only monetized through adsense, and it'd be hard to argue that Carlin's name was connected under what is generic algorithmic advertising to the advertisements shown on the video. Additionally, youtube's relationship with channels is also very generic, and would predate the video.
Some additional case law
The notice about the video being "AI" in the beginning would make it hard to argue that it was claiming to be factual.
I don't get why they even provoked this. If you have (or believe you have) an AI that can put out a comedy special as good as a legendary comedian, why set yourself up for a legal battle like this. Just put out a good video and use the novelty of the AI to get people interested in seeing it succeed or fail.