Author: Attorney Hiroki Horita

1.The Emergence of Generative AI Created Models

In October 2023, an advertisement for “PARCO Happy Holidays” launched by PARCO Co., Ltd. became a major topic of discussion. The advertisement featured two blonde women standing at the center of the screen, dressed in flower-themed outfits. However, in reality, these women did not actually exist and were created entirely by inputting instructions (prompts) into generative AI. The ability of generative AI to create realistic images of such “models” not only eliminates the need to pay appearance fees but also gives advertisers complete creative freedom in creating their advertisements.

This may seem to be an ideal solution, but precautions must be taken when using generative AI-created “models” in advertisements. The most significant concern to be kept in mind is the issue of infringement of publicity rights.

2.Publicity Rights

Publicity rights refer to the exclusive rights to commercially use an individual’s name, likeness, etc., when such attributes have the ability to attract customers and promote the sales of products (Supreme Court Judgment, February 2, 2012, Civil Case Collection Vol. 66, No. 2, p. 89 [Pink Lady Unauthorized Photo Publication Case – Appeal Trial]). These rights are granted to protect the commercial value of a celebrity’s name or likeness, and are only recognized when “the individual’s name, likeness, etc., has the ability to attract customers and promote the sale of products”. These rights are not granted to ordinary individuals or the general public.

3.Generative AI and Publicity Rights

If a generative AI-created “model” closely resembles a famous public figure, would that constitute infringement on the public figure’s publicity rights?

The first argument is that even if the “model” created by generative AI resembles a famous public figure, it is not the actual public figure itself. Therefore, it might seem that the issue of publicity rights infringement would not arise. However, if the resemblance is strong enough to make the public figure identifiable, that is, if there is substantial similarity, it is understood that the likeness, etc., of the public figure is being used. In such cases, the use of a generative AI-created “model” could raise concerns regarding the infringement of publicity rights.

The Supreme Court precedent further clarified the circumstances under which an act would constitute an infringement of publicity rights. In the Pink Lady Unauthorized Photo Publication Case, the Supreme Court held that “the unauthorized use of another individual’s likeness, etc., constitutes infringement of publicity rights and is illegal under tort law if the purpose is solely to exploit on the customer-attracting power associated with the likeness, etc., in the following circumstances:　(1) the likeness, etc., itself is used as an independent object of appreciation for a product or a similar item; (2) the likeness, etc., itself is attached to a product or similar item for the purpose of product differentiation; and (3) the likeness, etc., is used as advertising for a product or similar item.”

Following this precedent, using a generative AI-created “model” that resembles a famous public figure in advertising would likely constitute an infringement of publicity rights.

Now, consider a scenario where the resemblance is purely coincidental. Even if the AI-generated “model” happens to resemble a famous public figure by accident and is subsequently used in advertising, the conclusion remains the same (that publicity rights have been infringed). The fact that the resemblance is exploited, that is, if the purpose of the advertisement can be defined as “exploiting on customer-attracting power associated with the likeness, etc.”, constitutes infringement of publicity rights.

4.Approach to Avoid Infringement of Rights

The most effective approach to avoid infringement is to investigate whether any individual resembling the generative AI-created “model” exists and to use the image only if no such individual exists. However, unless the resemblance is to an extremely famous public figure, there may be oversights.

In addition to investigating, it is essential not to give instructions to the AI to generate a “model” similar to famous public figures, and not to use AI that generates specific individuals. Additionally, when concluding contracts with advertising agencies or other third parties to create content, it should be ensured that the contract guarantees there will be no infringement of rights from the contractor’s side.