From the Karma Department
We've written a lot about Taylor Swift's various adventures in intellectual property law and the internet in general. That's not surprising given her popularity and presence in pop culture. But what's interesting about her as a Techdirt subject is how she straddles the line between being both a victim and a perpetrator of overly aggressive intellectual property enforcement. That is, Swift is no stranger to negative consequences in the digital sphere, and she's no stranger to being legally aggressive.
So this article is meant as a sort of open letter to Swift to not listen to roughly half the internet who is calling on her to sue Donald Trump for sharing an AI-generated image on social media that falsely implies that she supports him.
Taylor Swift has yet to endorse any presidential candidate in this election, but former President Donald Trump has said he would accept the superstar's non-existent endorsement.
“I accept!” Trump posted on his Truth Social account, along with a carousel of images, some of which appear to be at least partially AI-generated.
One of the AI-edited photos shows Swift dressed as Uncle Sam with the text, “Taylor wants you to vote for Donald Trump,” while another shows Swift fans wearing “Swifties for Trump” T-shirts.
As the quote states, not all of the images are AI-generated “fakes.” At least one is of a real woman who is a huge Swift fan and is wearing a “Swifties for Trump” shirt. Similarly, there is a “Swifties for Kamala” social media campaign aimed at supporters of the other side. None of this matters much, of course. But the image Trump shared on Truth Social implied more than just a community of Kamala fans who are Trump fans. In fact, it almost seemed like Trump was accepting an endorsement that wasn't there.
You may not have noticed, but just below the photo in the top left is a label that clearly identifies the article and associated image as “satire.” The image of Swift going the Uncle Sam route to rally Trump supporters also clearly did not come directly from Swift or anyone associated with her. In fact, while she is not endorsing any candidate in this election (more on that later), she did endorse Biden in 2020, complete with some particularly scathing comments about why she wouldn't be voting for Trump.
Now, Trump sharing misleading information on social media is about as unnewsworthy as the fact that the sun is going to set tonight. But it's notable that social media erupted in response, with many online urging Swift to “hire a lawyer” and “sue Trump!” — something she definitely shouldn't do. Some media outlets have even suggested that Swift should sue under Tennessee's new Elvis Law, which prohibits using a person's voice or image without their permission and has never been tested in court.
Trump's post may be enough to give Swift's team grounds to sue him under Tennessee's “Elvis Law,” which Vanderbilt University law professor Joseph Fishman said protects “almost any unauthorized imitation of a person's voice or appearance.”
“It doesn't matter if the image is AI-generated, or if it would actually confuse people,” Fishman said. “In fact, the image doesn't even have to be fake; it could be a real photo, as long as the distributor knows that the subject of the photo has not given permission for it to be used.”
Please don't do that. First, it probably won't work. Suing with untested laws that likely violate First Amendment protections is a great way to waste money. Trump probably didn't create the images, he just shared them or reproduced them truthfully, so it will be hard to hold him accountable.
But the key point here is that all Swift really needs to do is respond with her own political support and views, if she so desires. Not that she didn't do that in the last election. If she's upset about what Trump did and wants to punish him, she can solve that by being more vocal – her own voice. In fact, not many people can mobilize an audience comparable to Donald Trump's… but she almost certainly can!
Simply point out that what he shared is fake. If she wants, she can mention that she voted against him last time. If she wants, she can support another candidate. Or she can just issue a scathing denial like this:
“The image shared by Donald Trump made it seem as if I endorsed him, which I do not. In fact, I have not given him permission to use my image in any way and have asked him not to do so in the future. On the other hand, Donald Trump has a history of not caring much about getting women's consent, so I'm trying not to get my hopes up.”
Categories: First Amendment, AI, deepfakes, Donald Trump, Elvis Act, endorsements, image rights, publicity rights, satire, Taylor Swift
