Models, Photographers, and AI (Oh My!)
by: Rosanne Yang
Model releases and photography/videography contracts are core to every marketing team’s operations. However, with the increasing availability and ease of AI tools that promise to take your existing materials and generate new content for limitless and cheap ongoing marketing assets, these contracts need to be revisited. Past contracts are unlikely to cover these new uses, and templates should be updated to anticipate these use cases if the marketing team believes they are likely to be needed.
Let’s take a deeper look.
Traditional Contractual Rights
Photographers and Videographers. If you are fortunate enough to take ownership of the photos and videos under a clear and proper work for hire or assignment provision, and you either don’t face or have dealt with any moral rights issues, then great. No need to worry about their rights. However, those kinds of rights transfers require express language, which the documents often lack, and even more often, these contractors expressly retain ownership of the copyrights in the marketing assets they create for a company.
Where there is not a clear work for hire or assignment clause, the company has at most a license to use the imagery, and the details of that license matter a lot. When determining whether the license includes the right to use the imagery to train an AI or to produce entirely new content based on the imagery via AI, the typical hot spots for attention include:
Sublicense Rights. If you are using a third party tool where the use of the imagery would need to be sublicensed to the tool vendor, does the license permit sublicensing?
Scope of Permitted Use. The license may limit the company to certain uses like ecom and social media, or may just have seemingly broad terms such as the right to “use” and “modify” the imagery. The question will be whether the terms reasonably contemplate training an AI model and generating entirely new content from the imagery. Depending on the language, a company may have a stronger or weaker argument, but the photographer is going to have a strong incentive to bring a claim. Including references to AI uses explicitly is a better approach to ensure that the parties are clear about the scope of the permitted use.
Length of the Usage Right. Unless the model is being retrained from the ground up frequently, it is possible that even an in-scope usage will in effect extend well beyond the license term, and outputs from the AI after that usage right expires may violate the license term.
“But wait!” you say. “Haven’t some courts ruled that training an AI does not constitute infringement?” Yes, some courts have ruled that using lawfully obtained copyright-protected materials to train an AI is not an infringing act. However, multiple pieces of litigation remain ongoing, and not only are potentially different results still possible, but where licenses are at least in theory negotiable and scope is very clearly and directly tied to compensation, beyond-the-license uses are riskier. Even the originally ruling courts may find ways to distinguish this situation and deem this beyond-the-license use infringing.
Models. Models’ rights in their likenesses, names, voices, and other indicators of their personas are always used on a licensed basis and therefore need close examination. The hot spots are the same as for photographers and videographers, but note that agreements with the models do not always align perfectly to agreements with the photographers/videographers. A company needs the rights from all involved parties in order to proceed; having the rights from just one of them is not sufficient. In addition, persona rights claims are not the same as copyright claims, so the results around training may be different.
Agencies. If you have an agency between you and the photographers/videographers and the models, the situation becomes extra complicated. Look at what your contract with the agency required them to obtain in terms of rights; the same hot spots apply here too. Then, even if you required all the right things, ask for the proof that they did what you required. They should be able to produce the documentation. Lack of documentation is a red flag (on many levels).
Applicable Laws
Even if your contracts are rock solid from a traditional point of view and have expansive language, there are a variety of state-level laws that govern a company’s ability to use photography and/or videography of models to train an AI or to create new materials using an AI. The fact that a contract was signed before these laws existed does not necessarily save the contract where there are new uses after the law’s effective date. Also note that whether any particular law is applicable may be determined by the location of the company, the residence of the model, and/or the location of the shoot.
A sampling of potentially relevant laws are as follows, noting that the laws themselves can be much more detailed than this overview provides:
Digital Replica Laws. Some of the AI laws ban the use of unauthorized digital replicas or say that contractual provisions that permit the creation of a “digital replica” are not enforceable if they don’t meet certain criteria. For instance:
California’s AB2602, Illinois’ HB4762, and New York’s GOB Ch. 24-A, Art. 5, Title 3, Sec. 5-301 each provide that a contractual provision ostensibly permitting a digital replica is unenforceable if (a) the replica would be used in place of work the model would have otherwise performed in person; (b) the provision does not include a reasonably specific description of the intended uses of the digital replica; and (c) the individual was not represented by either an attorney or a union.
New York’s Fashion Workers Act (S. 9832) requires that consent to creation or use of a digital replica be clear, written, separate from any representation agreement, and contain certain details.
Traditional model contracts simply do not have the level of specificity contemplated by these statutes.
Deepfake Laws. While the concept of a “deepfake” tends to involve some element of fraud, which should not itself be involved in a marketing campaign, the technical definitions of deepfakes could be triggered, and some of the laws contain language indicating that where a likeness is intended to or could inflict harm, including financial harm, enforcement is permitted. Loss of an employment opportunity may be sufficient in these instances to trigger the statutes. For instance:
Arizona’s HB2394 provides that where a digital impersonation published without consent, is not obvious, and presents some risk of harm (calling out loss of employment specifically), the use is actionable.
New Hampshire's HB1432 makes it unlawful to knowingly create or distribute a deepfake for the purpose of causing financial harm.
While there appear to be available defenses in these instances, models who find their likenesses appearing in entirely new contexts and campaigns without additional compensation to them are likely to try to enforce any way they can find, and how courts will ultimately interpret these provisions is as yet unknown. The best bet therefore is to get clear and specific consent to these uses.
Privacy Laws. The technology at issue very well may be creating facial geometry mapping and the like, even if it is not obvious to the marketing team who is just feeding images in and getting new images out. Where these types of activities are going on within the tool, it may trigger biometrics laws, requiring at least disclosure and potentially specific consent, as well as leading to retention period requirements and other back-end data handling requirements. Because biometrics uses require specific disclosures and consents under these statutes, traditional model releases will not suffice.
The good news is that with proper attention, longstanding template agreements can be updated with the proper license scope, disclosures, and consent language. The hard part may be in getting photographers and models to agree.
Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.