Close-Up on Media, Entertainment & Sports: Right of Publicity & Consumer Protection Issues - McDermott Will & Emery

Key Takeaways | Close-Up on Media, Entertainment and Sports: Right of Publicity and Consumer Protection Issues


During this webinar, Sarah Bro and Lesli Esposito teamed up to discuss considerations for addressing the right of publicity with the advancement of generative artificial intelligence (AI) technologies. They also unpacked legal compliance for influencer, sponsorship and endorsement agreements.

Top takeaways included:

  1. Congress is considering a bill on AI fakes. The right of publicity prevents others from commercially exploiting someone’s identity (e.g., voice, name, likeness) without their permission. Currently, the right of publicity is addressed through state law, but Congress is considering a bill called “The No Fakes Act.” This bill would protect right of publicity federally by prohibiting unauthorized recreations by generative AI. If it passes, individuals could face liability for the production of unauthorized digital replica of an individual, and platforms could similarly be held liable if they possessed the requisite knowledge.
  2. AI technologies are impacting how likeness rights may be used in certain industries. For example, the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) Memorandum of Agreement approved in December 2023 requires that any digital replica of the voice or likeness of a performer must be outlined in a “reasonably specific description” of the intended use and requires “clear and conspicuous” consent by the performer. Consent continues after the performer’s death unless “expressly limited.”
  3. Third-party endorsements have significant implications. The Federal Trade Commission (FTC) prohibits endorsements that convey express or implied claims that would be deceptive if an advertiser made them directly. Endorsements must have adequate substantiation for all claims. In addition, endorsements must reflect the honest opinions of the endorser, and if an endorser represents that they used the product, they must have been a bona fide user.
  4. The FTC is increasing its enforcement. The FTC has been active, updating consumer protection guidance and making moves to combat deceptive advertising and misleading endorsements. In particular, the agency has emphasized that child-directed advertising is of special concern. Moreover, the FTC has maintained that advertisers must monitor and take responsibility for the actions of their endorsers and will be held liable for deceptive endorsements.
  5. The FTC has revised its Endorsement Guidelines. The definition of “endorsement” has been clarified so that it may include fake reviews, virtual influencers and social media tags. The Guidelines also clarify the definition of “clear and conspicuous,” stating that using a platform’s built-in disclosure tools may be inadequate notice. For disclosures, the FTC requires those making public endorsements to disclose if they are being incentivized in any way to advertise those products. Those with material connections to the brands that they are reviewing must also disclose those relationships. Furthermore, companies may not deceptively manage reviews to distort what consumers think of a product.

Up next in the series:

Stay tuned for upcoming webinars in this series that will focus on legal issues across other areas, such as intellectual property, antitrust and competition, and transactions, that impact media, entertainment and sports.

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