Digital Purgatory and the Rights of the Dead: Protecting Against Digital Disinterment in the Age of Artificial Intelligence

Authors

Greyson Cohen, Benjamin N. Cardozo School of LawFollow

Volume

2023

First Page

121

Last Page

162

Publication Date

2023

Document Type

Note

Abstract

This Note will attempt to show that the existing patchwork of rights of publicity statutes and case law are inadequate to protect citizens from online harms in the age of synthetic media. Particularly, this Note will focus on postmortem right of publicity interests and protections because a robust market for the likenesses of deceased personalities exists and will likely grow in the age of synthetic media.

Part I will explain how synthetic media may contribute to an increase in the harms associated with rights of publicity violations, particularly after death. Part II will begin by outlining the legal landscape of publicity protections and postmortem protections. It will then highlight that different conceptualizations of the right can lead to different results for litigants. Next, Part II will discuss how trademark law and copyright law can serve as federal “analogs” to postmortem rights of publicity protections. Lastly, Part II will compare and contrast features from various postmortem rights of publicity statutes to assess which components are most and/or least desirable to include in a federal statute. Part III will then argue that the existing mosaic of state protections and federal analogs are inadequate to protect citizens from the dignitary and emotional harms that synthetic media will exacerbate. Part III will then propose key features of a federal postmortem right of publicity statute that would realign federal protection with the interests the right was initially intended to protect—namely, the right to privacy and control over the use(s) of one’s likeness.

Keywords

Cloning, Artificial Procreation, Publicity, Right of Publicity, Intellectual Property Law, Science and Technology Law, Estates and Trusts, Industry

Recommended Citation

Greyson Cohen, Digital Purgatory and the Rights of the Dead: Protecting Against Digital Disinterment in the Age of Artificial Intelligence, 2023 Cardozo L. Rev. De-Novo 121 (2023).
Available at: https://larc.cardozo.yu.edu/de-novo/99