June 27, 2023

AI Face Replacement: A Class Act(ion)?

Intellectual property class action lawsuits have, historically, been relatively rare. But here, at the dawn of AI, everything is changing fast, and we already have what appears to be the first attempt at an AI-related class action: Young v. NeoCortext, Inc.

This action is currently pending in the Central District of California against the owners of Reface, a “deep fake” generative AI app that enables users to replace a celebrity’s face in a still photo from a film or TV with their own face. The app includes a searchable catalog that allows a user to select the star whose face they want to replace. This library includes images of Kyland Young — a finalist in season 23 of CBS’ Big Brother — who is seeking to represent a class of California residents including musicians, athletes, celebrities “and other well-known individuals” who have had their “name, voice, signature, photograph, or likeness” displayed in Reface.

Young alleges that Reface’s inclusion of his image violates his rights under California’s right of publicity statute. This law protects individuals against the unauthorized use of their image, name, or voice to advertise or sell a product. His claim hinges on a specific detail: Reface promotes paid subscriptions with a free version that allows users to generate an image with their face in the place of a celebrity. Images generated by the free version are watermarked with Reface’s logo and say “made with Reface app.” According to Young, this amounts to an ad for the paid version of the Reface app. Thus, he claims that Reface’s owner is exploiting his image (and the image of other celebrities and demi-celebrities) to encourage users to purchase the paid version of the app, which brings the app within the ambit of California’s right of publicity statute.

Lawyers for Neocortext, which owns the app, have moved to dismiss the complaint. They argue, among other things, that Plaintiff’s claims are preempted by the Copyright Act and are barred by the First Amendment.

On preemption, Defendant argues that since images of Young used on the app are owned by CBS, not Young, any action for the unauthorized use of these images would have to be brought by CBS, not Plaintiff. It argues that CBS’ claims (if any) would sound in copyright infringement, not a violation of the right of publicity. It seems likely that the Defendant will prevail on this argument.

Even if the Defendant doesn’t prevail on this argument and the case survives the motion to dismiss, this copyright issue could create problems certifying a class. One issue courts consider in determining whether a suit can be heard as a class action is “commonality.” This requires judges to consider if the potential class members (in this case, other celebrities) are likely to have more issues in common than not. The possibility that some claims might be preempted by copyright law while others are not might lead the judge to conclude that common issues don’t predominate. This could preclude the certification of the action as a class action.

Defendant also argues that Plaintiff’s claim should be dismissed because it “violates the expressive rights of Defendant and its users that are guaranteed by the First Amendment.” Here, Defendant claims that modifying celebrity images to convey an idea or message can be an exercise of creative self-expression within the scope of the First Amendment, and thus Reface performs a “transformative use,” which brings it outside of the ambit of California’s right of publicity statute.

All in all, at least on copyright preemption, Defendant’s arguments seem more convincing.

With that said, this lawsuit points to how AI is making it easier to manipulate celebrities’ images. This will undoubtedly lead to more right of publicity lawsuits.