Intellectual Property Insights from Fishman Stewart
Newsletter – Volume 26, Issue 7
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Battling AI Misuse with Trademark Law May Be “Alright” for Actor Matthew McConaughey
The actor recently obtained several trademark registrations with the U.S. Trademark Office in an effort to digitally capture and protect his entire persona. The registrations include a word mark registration for his iconic line, “ALRIGHT, ALRIGHT, ALRIGHT,” from the movie Dazed and Confused that launched his career, sound mark registrations for this saying and a line from another of his movies, and movement mark registrations depicting the actor’s gestures when physically moving in different positions.
Securing trademark registrations to protect one’s name, image or likeness is not new for celebrities. In the past, the U.S. Trademark Office has issued registrations for Emeril Lagasse’s catchphrase “BAM!”, Walt Disney‘s signature and the outline of Jay Leno’s face including his prominent chin. What is new is registering a series of different types of marks in an attempt to capture an entire persona digitally. McConaughey’s strategic approach in filing a series of marks, including non-traditional sound and movement marks, in an effort to capture his entire essence offers a new means for protection enforceable under federal law.
Traditionally, celebrities relied heavily upon states’ Right of Publicity laws, which vary state-by-state and lack the ability to bring lawsuits in federal court. While McConaughey’s strategy is novel, how effective these non-traditional trademark registrations will be in enforcement against unauthorized use of name, image and likeness is yet to be determined.
This is due to the inherent challenges presented by trademark law. First, trademark registrations only offer protection for those goods and services listed in the registrations and, arguably, those within the natural scope of expansion. Many celebrities file applications for trademarks in connection with goods and services that are either never used or for which use ceases resulting in loss of rights and the inability to pursue infringers.
Second, registration of sound and movement marks require specificity, such as the inflection and pronunciation of syllables. In addition, it can be difficult to overcome Trademark Office objections for these types of marks.
Further, the extent of protection and enforcement of sounds and movements beyond those specified in the registrations is uncertain. In the above instance, the sound mark is described as ” a man saying “ALRIGHT, ALRIGHT, ALRIGHT”, wherein the first syllable of the first two words is at a lower pitch than the second syllable, and the first syllable of the last word is at a higher pitch than the second syllable.” Similarly, the movement registrations are a series of motions, such as, “The motion consists of the actor standing and facing forward with his arms raised and palms open. Next, his arms open further and wider. He then glances to the side and places one hand on his hip and lowers the other hand out of the frame, with his body positioned at an angle, and turns his face forward. The duration of the motion is approximately 7 seconds.” The registrations may not be broad enough to address all unauthorized use, especially in an AI generated video with sound and movement significantly beyond that specified in the trademark registration.
With use of AI to digitally create unauthorized use of entertainers’ voices and images to say and do things the entertainers might not have actually said or done becoming more prevalent, McConaughey’s trademark registration strategy is a bold, creative move to combat such misuse. However, in the constantly changing, unchartered field of AI, the best course for protecting rights in one’s own persona digitally remains uncertain.
Fishman Stewart PLLC is here to help you analyze what type of protection is best for you!
Linda Monge Callaghan is a partner at Fishman Stewart, specializing in intellectual property law. Linda focuses mainly on trademark and copyright law, including foreign and domestic prosecution and litigation, as well as agreements and assignments.
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