AI Influencers and a Right of Publicity

Abstract

The influencer industry has exploded over the past few decades with estimated valuations as high as hundreds of billions of dollars. Most influencers are humans who receive compensation for leveraging their social media followings to promote specific brands. More recently, however, so-called virtual influencers, such as Lil Miquela, who are CGI creations rather than actual people, have achieved success in the young influencer industry. Now, so-called AI influencers enter this rapidly developing field with artificial intelligence technology playing an increasing, but complicated role in the creation and curation of influencer content. This Article catalogs the diverse roles held by artificial intelligence in the influencer space situating its various uses within a broader spectrum of influencer use of technology. This Article is the first to tackle a pair of important questions concerning whether the right of publicity applies to virtual and AI influencers, and whether it should apply. Descriptively, this Article examines state right of publicity regimes and analyzes whether these statutory or common law frameworks in their current form could apply to virtual or AI influencers. Normatively, the question of whether the right of publicity should apply to virtual or AI influencers is complicated by the fact that scholars and courts have not coalesced around a single theoretical justification for the right of publicity. By examining each of its possible theoretical justifications, the Article argues that there is a stronger case for applying the right of publicity to virtual and AI influencers under each justification than may immediately be apparent. Nonetheless, the strength and scope of the argument differ depending on the justification selected. Ideally this analysis will offer an opportunity for scholars, legislatures, and courts to sharpen their justifications for protecting the right of publicity into a theoretically defensible and coherent body, with broader implications not only for virtual and AI influencers, but the entire right of publicity doctrine.