‘AI-Generated’: the 8th dirty word?

Legendary comedian George Carlin is no stranger to groundbreaking legal questions. His 7 “Dirty Words” routine played an important role in Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), where the Supreme Court held that the FCC could regulate the broadcast of Carlin’s routine which was indecent, but not obscene. Recent allegedly infringing uses of Carlin’s works and rights of publicity have brought him back into the legal battlefield posthumously, this time involving artificial intelligence.

The Estate of George Carlin recently sued Will Sasso and Chad Kultgen, hosts of the supposedly AI-generated podcast, “Dudesy,” on copyright infringement and right of publicity claims, to create and promote a comedy special called, “George Carlin: I’m Glad I’m Dead.”

The complaint doesn’t specify the Carlin works used, but just mentions that it is his “entire life’s work.” In a (perhaps not so) surprising development after the filing of the complaint, defendants revealed to the press that the special was actually entirely human-written. The special, as originally uploaded to YouTube, contained Carlin’s voice (or imitation thereof, as characterized by defendants) and an AI-generated image portraying his likeness. The suit is in the initial stages, so there are many facts that likely still need to take shape.

When examining the intersection of copyright and AI, there are 2 key concepts: (1) Ingestion of data when training AI systems; and (2) The generative output resulting from AI systems. Defendants’ recent disclosure about writing the special (if 100% true) could complicate the copyright claim.

Commonly, ingestion when training of AI systems involves copying of material. A question in this case is whether Carlin’s works were fed to an AI system as the complaint states or not. If so, and no defense applies, such as fair use under 17 U.S.C. Section 107, there is an argument for copyright infringement under 17 U.S.C. Section 106(1) because of unauthorized reproduction of Carlin’s works.

When it comes to the words in the special, regardless of whether AI output them or they were human-written, there could be a potential violation of the derivative work right that is exclusive to copyright owners as described in 17 U.S.C. Section 106(2), depending on the contents of the source works at issue and how they compare to the special. Copyright protection applies to “original works of authorship fixed in any tangible medium of expression” and does not apply to ideas, according to 17 U.S.C. Section 102. Thus, although the ideas contained in a joke are not protectable by copyright, a particular expression of a joke can be copyrightable. Here, if the special only expresses the ideas of Carlin’s style of jokes, but does not contain actual protectible expressions from Carlin’s works, then it could be found that the special is not an unauthorized derivative work (or a derivative work at all for that matter). If the opposite is true and the special does contain such protectible expressions, then the special could be found to be an unauthorized derivative work.

Moving on from copyright, the right of publicity claims raise the question of how (if at all) Carlin’s name, voice, and likeness could be subject to protection. California Civil Code section 3344.1 protects against the unauthorized use of a deceased person’s name, voice, and likeness to advertise, sell, or solicit “purchases of, products, merchandise, goods, or services.” Its sister statute, California Civil Code section 3344 is similar, but applies to living people. Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001). Mere imitation of a voice isn’t enough to afford protection under this statute, however, it doesn’t preclude a common law right of publicity claim. Midler v. Ford Motor Co., 849 F.2d 460 (1988). Where the “distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product,” the common law right applies. Id. However, the common law right only applies to living people. Comedy III Productions, Inc. v. Gary Saderup, Inc., 25 Cal. 4th 387 (2001).

While the video containing the special itself was not monetized, the complaint details other ways that defendants used Carlin’s name and likeness, such as using them to advertise and funnel sales to and in connection with defendants’ other products and services, such as, monetized and sponsor-backed podcast episodes, merchandise, and its premium subscription podcast. If this holds up, then Section 3344.1 might apply for the name and likeness uses because in such case, Carlin’s name and likeness would have been used for unauthorized purposes.

With regard to Carlin’s voice, a difficulty is in the fact that the voice in the special is purportedly an imitation of his voice and not his actual voice. The applicable statute reads “voice,” its sister statute was held to not cover imitations, and while common law makes room for imitations (though, not all, according to the Midler court), it currently doesn’t apply to the deceased. Depending on what was fed to an AI system for it to be able to output the words in Carlin’s voice, there could be an argument that because the original inputted data involved actual clips of his voice to train an AI system, the output is also somehow his voice that was used in the special, which was then tied to attempts to drive sales, and so, Section 3344.1 applies. Or perhaps this battle will lead to some sort of expansion of such statute, via amendments and/or new laws at the Federal level.

Note that defendants could have avoided this lawsuit if they had voluntarily entered into an agreement with plaintiffs, however based on plaintiffs’ recent public comments, it seems that plaintiffs would not have been agreeable.

Alas, we shall wait eagerly as this case continues to develop. Will “AI-generated” become the 8th “dirty word”? Time (and the most convincing arguments on either side based on how the facts unfold) will tell.

Disclaimer: This information is for informational purposes only and should not be taken as legal advice for any individual case or situation; and please do not consider this information to be a substitute for obtaining legal advice from a qualified attorney licensed in the jurisdiction(s) relevant to your matter.