Can You “Own” AI Actors You Create?

There are now several successful social media influencers entirely created by AI, with name recognition and dedicated followers (check out Aitana Lopez and Lu do Magalu). These AI influencers look realistic, albeit a bit too perfect, and they seem entirely human as they cavort in the luxurious lifestyle of the rich and famous. Aitana, for example, already has over 300,000 followers and earns her creators over $10,000 per month. She doesn’t complain to her creators about long work hours, she doesn’t throw hissy fits, and best of all, she doesn’t demand any compensation. What’s not to like? It won’t be long before Hollywood adopts a similar strategy to create AI actors – especially as AI’s ability to emulate human emotions continues to advance.

Which brings us to the question in this article of whether you can you protect legal ownership of AI actors? One possible approach is through copyright law, but the cases and the U.S. Copyright Office state that works created solely by AI can’t be protected by copyright. The best way to avoid this problem is to have a real live flesh and blood human create hand-drawn images of the AI actor from various angles, and registering those images in the Copyright Office. These human-created drawings would then be protected by copyright, which means that any third party attempting to use the AI actor that is derived from these images would risk infringing on the underlying copyrighted material. The chink in the copyright armor, however, is that third parties may be permitted to replicate all the AI created aspects of the AI actor (such as the idiosyncratic mannerisms, unique voice, and lovable personality) in creating a new AI actor so long as their version does not closely resemble the physical appearance of the original copyrighted drawings. Copyright would also not protect the “real name” of the first AI actor, but trademark law might, as discussed below.

It is difficult to protect ownership of the image of an AI actor using trademark law, because trademark law is intended to protect names, logos, and images that identify the source of a good or service, not the image itself, since that is the domain of copyright. For example, Disney can’t use trademark law to stop third parties from using an image of the original Winnie the Pooh (which is now in the public domain), but it can use trademark law to stop third parties from using that image to identify the source of a separate good or service.

But perhaps it is possible to trademark the image of an AI actor if it is associated with the source of particular films, such as a franchise all starring the same AI actor. If this approach is attempted, here are some steps that may increase the odds of success:

1. Make the AI actor image distinctive. At a minimum, it should not look like an existing celebrity or have generic features.
2. Use the image in commerce, such as in social media, on YouTube, or in film (the more the better), with the goal of generating revenue from the use, and expressly identify the image with the source of the particular use, such putting the AI actor’s image in the main title sequence.
3. Give the image a name (again, the more distinctive, the better), and consistently associate that name with the image.
4. File a U.S. trademark registration for both the name and the image.

My guess is that the creators AI created social media influencers are already attempting all or some of these approaches to attempt legal protection. Otherwise, anyone could just copy their creations and freeload off their success without consequence.