In a recent Senate hearing, Senator Thom Tillis played a song featuring a verse from the late rapper Tupac Shakur, created using artificial intelligence (AI). The song, titled “Taylor Made Freestyle,” was caught up in a legal battle when Tupac’s estate sent a cease-and-desist letter demanding its removal. The case raises questions about the rights of individuals and their heirs to control digital replicas of themselves, and the legal landscape surrounding AI creations.
Tupac Shakur, known as one of the greatest rappers of all time, was murdered in 1996 at the age of 25. Despite his untimely death, his estate has continued to release his unreleased songs, leading to speculation about the integrity of his legacy. The estate has also faced controversy over partnerships, including a collaboration with Nixon to launch a line of watches inspired by Tupac.
The use of AI to resurrect deceased celebrities has created a new wave of legal questions regarding the rights of estates to authorize such reproductions. Currently, there are no federal laws explicitly prohibiting the use of AI replicas without consent. Instead, a patchwork of state laws dictates the extent of protection for individuals' likeness and voice rights.
However, recently, Tennessee became the first state to enact a law protecting musicians from unauthorized AI replicas, extending rights even after death. The state in which an artist was domiciled at the time of their death often determines which laws govern their rights. In the case of Tupac, who declared California as his home, his estate could argue that the use of his likeness without permission violates California’s robust identity rights laws.
The legal landscape surrounding AI-generated replicas remains uncertain and murky. Mark Bartholomew, a law professor at The University at Buffalo School of Law, suggests that Tupac’s estate may have a case under federal copyright law if the AI Tupac’s voice was generated using copyrighted material. Nevertheless, the law in this realm is still evolving.
In response to the legal challenges posed by AI-generated replicas, Senator Tillis and his colleagues have co-sponsored a draft legislation known as “The No Fakes Act.” This Act would grant a federal “digital replication right” to individuals, allowing them to authorize the use of their digital replicas in various forms. The legislation is modeled after existing copyright law and includes exceptions for fair use. It would extend the digital replication right to an individual’s heirs for a period of 70 years after their death.
The 70-year postmortem provision in the legislation has sparked debate. Some argue that after an artist’s death, the need to preserve job opportunities for living performers diminishes. However, representatives from organizations like SAG-AFTRA, which represents actors, emphasize that an artist’s legacy and their family’s economic benefits should be protected even after death. They argue that heirs should have control over their digital replicas, and some argue for these rights to be perpetual.
Bartholomew suggests finding a balance between the interests of artists' families and the public’s right to free expression. He proposes a more sensible regulation that would give heirs around 20 years of control over digital replicas. Such a rule would have allowed Drake to use AI Tupac in his song without authorization, as Tupac has been dead for nearly 30 years.
As the legal battles continue, it is clear that the emergence of AI has disrupted traditional notions of rest in peace. The case of AI-generated replicas raises important questions about the rights of individuals and their heirs in the digital age, and the need for comprehensive legislation to address these concerns.
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