Recently, AI has been discussed with increasing interest from various sectors. Although the use of AI can create exciting new opportunities (including virtual worlds and the Abba Voyage London), there is a legitimate concern that the technology could be used to the disadvantage of certain professions. One of the more controversial areas which has been brought to the forefront due to current events is the use of AI and technology to generate images and replicate the work of artists (including models, actors and musicians) without their permission, meaning that they do not receive due credit and adequate compensation for the same.

The key risk that arises from these types of situations (including the creation and use of avatars, being a computer generated representation of a person, and superimposed images / deepfakes) is the potential misuse of an artist’s image rights and potential inability to control their artistic expression and affiliations.

‘Image rights’ refers to an individual’s proprietary rights in their personality and their ability to exploit the same (and prevent others from doing so), including a person’s name, likeness and other personal identifiable elements which are connected to an individual. In some jurisdictions, there are measures in place to protect these rights, including restrictions on third-party use. However, there are no clear legal protections for image rights under English law, with protections and remedies having to be sought under other areas of the law, as explained and detailed below.

Remedies & Protections

Data Protection

The first area, which is likely to provide the best protection in these circumstances, is data protection laws – this protects the personal indicators of the artist (including their likeness, gestures, dance moves, religious beliefs, ethnic origin, sexual orientation and other distinguishing features) which all fall within the scope of personal data under the UK GDPR.

Under English law, the processing of personal data can only take place if there is a lawful basis to do so and any use of an artist’s image (for example, creating an avatar via which they can be identified) without their permission is unlikely to have a lawful basis. Although the offending party may argue that it has legitimate interests in processing this way, they will need to show why the processing is justified and its legitimate interests override the interests of the artist. On balance, it is highly unlikely that such use would be considered justified and the individual should be able to rely on this to stop the offending party from using its image in this way. Additionally, the artist may be able to rely on its rights against organisations to object to processing and to obtain erasure of its personal data to prevent the use of its image in these circumstances.

Tort of Passing Off

Other than data protection laws, an artist may be able to rely on the tort of passing off, which protects the commercial value of an individual’s reputation / image.

To bring a successful claim for passing off, the artist must show that:

• they have the requisite reputation or ‘goodwill’ among the UK public;

• a third party has made (or intends to make) use of its image in a manner that is likely to lead the public to believe that the goods / services are offered or endorsed by the individual; and

• the misrepresentation has caused or is likely to cause the individual harm. The ‘harm’ here is likely to be the fee that would have been payable to the artist in connection with such a campaign had they actually been involved.

Although this would be helpful in circumstances where an artist’s likeness is used to endorse a particular brand / product without its permission, it is unlikely to be relevant in any other circumstances and so remedies would be limited under this area of law.

Defamation

If an artist’s image or name is used without their permission in a way which is false, misleading or may bring them into disrepute (for example, by attaching them to something which goes against their brand), they may be able to rely on defamation laws.

To bring a successful defamation claim, the individual must show that the statement / image complained of:

• is defamatory (meaning that it lowers the artist in the view of right-thinking members of society);

• identifies or refers to the individual;

• is published by the offending party to a third party; and

• has caused or is likely to cause serious harm to the individual’s reputation.

However, this can be difficult to prove and rely on as an area of law – unless if the use of the artist’s image causes or is likely to cause harm to their reputation, a defamation claim is not likely to be the best remedy to rely on where AI is used to replicate their image or work.

Advertising Regulations

The last remedy to explore, which is very limited in scope and would only apply where an advert is published which appears to receive an artist’s endorsement (without them consenting to the same), is a complaint under the advertising codes and regulations – these contain specific standards regarding the use of images of individuals portrayed or referred to in adverts without their permission.

Under the advertising codes and regulations:

• advertisers must not unfairly portray or refer to anyone in an adverse or offensive way without written permission;

• advertisers must obtain the individual’s written permission before referring to them or portraying them in an advert and / or implying the endorsement of the individual in any way; and

• in relation to TV adverts, living persons must not be featured, caricatured or referred to without their permission.

Whilst the advertising codes and regulations do not give the individual any direct course of action or remedy, they do provide a way to complain and may result in the advert being withdrawn. However, arguably it is the weakest course of action for an artist to rely on in relation to protecting their image and is only limited to specific circumstances, whilst the misuse of an artist’s image via AI (and more generally) can go a lot further.

Conclusion

Overall, the use of AI and technology to generate images and replicate the work of artists without their permission raises important questions about the protection of artists' image rights and their ability to control their artistic expression and affiliations. Whilst English law does not provide clear legal protections for ‘image rights’, there are options available to artists facing these challenges and it will be interesting to see how the law develops to keep up with these innovations and the emerging risks posed by their use.

It is also important for artists and agents to ensure that contracts that they enter into with third parties include protections against these circumstances where possible (including restrictions on the use of their image and IP) and that their rights in relation to use of their image are not given away freely. Artists and their representatives must stay vigilant in protecting their image rights and seek advice to determine the most appropriate course of action based on the specific circumstances they face.