CNN —
Former President Donald Trump's reposting of a fake image of Taylor Swift posing like the iconic Uncle Sam recruiting poster has brought to the fore a topic that goes beyond politics: unauthorized digital reproduction.
Concerned about the proliferation of AI tools, state and federal lawmakers have recently launched or advanced efforts to protect everyone from the misuse of their name, voice, image and likeness in the digital age. To experts, Trump's social media posts are not only one of the most prominent false claims in the 2024 presidential election, but also highlight why such a sweeping legislative effort is underway.
Trump reposted several images on his platform, Truth Social, over the weekend, including one that portrayed Taylor Swift as Uncle Sam, with the caption, “Taylor wants you to vote for Donald Trump.” In response to the fake endorsement, Trump posted a carousel of images of Swift with the caption, “Yes I do!”
A representative for Swift did not immediately respond to CNN's request for comment. The pop icon has not endorsed anyone for the presidential election.
Asked in an interview with Fox Business on Wednesday if he was worried about a potential lawsuit, Trump denied creating the images.
“I don't know anything about them other than somebody created them. I didn't create them,” Trump said. “These are all things that other people created. AI is always going to be very dangerous in that way.”
Tennessee is one of the latest states to enact legislation aimed at protecting people from the unauthorized use of content that impersonates their image or voice.
The Protection of Portrait, Voice and Image Act (ELVIS Act), which came into force last month, expands the state's existing right of publicity laws to specifically protect artists who include a person's voice and makes it illegal to use that content in “any medium.”
The law could provide a legal avenue for Swift, who launched her career in Nashville, where she currently resides part-time.
Tennessee Senate Majority Leader Jack Johnson, a Republican who introduced the bill, said the misuse of AI-generated content and its impact on artists was part of the reason he was changing the law.
“The rapid advances in AI are exciting in many ways, but they also create new challenges, especially for singers, songwriters and other music professionals,” Johnson said in a news release when Tennessee Gov. Bill Lee signed the Elvis Act. CNN has reached out to the governor's office for comment.
Joseph Fishman, a Vanderbilt University law professor whose research focuses on intellectual property and entertainment law, said one problem with the law is that it's so broad that it “covers almost any unauthorized use of a person's likeness or voice that the distributor of the image, video or audio knows to be unauthorized.”
Several states have passed laws regarding the use of false content since 2019, and at least 40 states have bills pending for the 2024 session, according to the National Conference of State Legislatures. The laws don't apply only to AI-generated content, but many target sexually explicit content and some focus on content intended to mislead voters, the group said.
When it comes to political campaigns, more than a dozen states have enacted laws restricting the use of so-called deepfakes — realistic, fake video, audio and other content created with AI. Depending on the state, violators could face prison time and heavy fines, and candidates could be disqualified from holding public office or seeking nominations, CNN previously reported.
While a new wave of AI-focused legislation appears to be on the way, unauthorized use of digital copies may be punishable under other existing laws, said Colin McSherry, legal director at the Electronic Frontier Foundation, a nonprofit that focuses on intellectual property, open access and free speech issues.
“If you're concerned that your image or your face is being used in a way that's defamatory or that implies a false endorsement, you probably already have rights under defamation law. You may also have rights under trademark law. We have a lot of long-standing principles for dealing with these situations,” McSherry said.
At the federal level, Congress has yet to pass a national framework to regulate AI, including AI-generated replicas. However, the Federal Communications Commission sought fines after AI-generated robocalls imitating President Joe Biden's voice urged voters not to participate in New Hampshire's primary election. According to the FCC, the robocalls used spoofing techniques that violate federal caller ID laws.
Ringo Telecom, the telecommunications company that sent the robocalls, agreed to pay a $1 million fine on Wednesday. Steven Kramer, the political consultant behind the robocalls, faces a $6 million fine.
Last month, the U.S. Copyright Office released a report urging lawmakers to pass federal legislation to combat unauthorized digital copying.
“The distribution of unauthorized digital copies has proven to be a serious threat not only to the entertainment and political spheres, but also to ordinary citizens,” Shira Perlmutter, the Registrar and Director of the U.S. Copyright Office, said in a statement. “We believe there is an urgent need for effective nationwide protection against the damage that can be done to reputations and lives.”
Darrell Mottley, a patent attorney and director of the Intellectual Property and Entrepreneurship Clinic at Suffolk University, says it's important to remember that regulation should focus on how AI is used, not the technology itself.
“We're not regulating the technology itself, we're regulating human behavior that uses technology in ways that we don't think are appropriate, and that's what regulation should do,” Mottley said.
Legal experts agree that Swift could potentially sue under the Elvis Act because of her ties to southern states, but the outcome is unclear.
“Elvis Law is one of the laws that apply to Mr. Trump's conduct and he may be held liable under it,” Fishman said.
Fishman and McSherry said that if a lawsuit is filed against Trump, the former president's lawyers could argue that the posts were satire or parody and protected by the First Amendment.
The Elvis Law contains exceptions for uses protected by the First Amendment, such as criticism, satire and parody. Fishman noted that the scope of those exceptions is not spelled out in the law, so “no one knows where the courts will draw the line.”
“While there is a lot of uncertainty about what would actually happen if a lawsuit were filed, if this exemption does not apply, it appears that the posting of these images would fall under Tennessee law,” Fishman said.
The fact that some of the images were generated by AI made the situation “much more provocative,” Fishman said, but added, “If Trump had just Photoshopped the pictures or if he was really good at drawing and had drawn something, he could still face similar legal risks. The issues are the same.”
In McSherry's view, Swift can simply choose to deal with the issue outside of the court system.
“Given Taylor Swift's celebrity and influence, I think it would be felt that frankly it would be much more effective for her to use her platform to deny it, and that would be more effective than any lawsuit,” McSherry said.
Regardless of the rise in AI-generated content, legal experts agree that even non-celebrities can be held liable when their voices, likenesses or images are misused to falsely imply endorsements.
