(CNN) – When former US President Donald Trump reposted a fake image of Taylor Swift posing as the iconic Uncle Sam recruitment poster, he highlighted an issue that goes beyond politics: unauthorized digital replications.
Concerned about the proliferation of artificial intelligence (AI) tools, state and federal lawmakers have recently launched or pushed forward initiatives to protect anyone from having their name, voice, image and likeness misused in the digital age. For experts, Trump's social media post highlights why such broad legislative efforts are being pursued, as well as being one of the most visible false claims in the 2024 campaign.
Last weekend, Trump reposted several images on his Truth Social platform, including one showing Taylor Swift as Uncle Sam. The image included the caption: “Taylor wants you to vote for Donald Trump.” In response to the fake support for his presidential bid, Trump posted a carousel of images (of Swift), along with the comment: “I do!”
A representative for Swift did not immediately respond to CNN's request for comment. The pop icon has not endorsed any candidate in this presidential race.
In an interview with Fox Business On Wednesday, Trump denied creating the images when asked if he was concerned about a potential lawsuit.
“I don’t know anything about them other than that somebody else created them, I didn’t create them,” Trump said. “These were all invented by other people. AI is always very dangerous in that sense.”
Tennessee is one of the latest states to enact a law aimed at protecting people from unauthorized use of content that imitates their image or voice.
The Likeness, Voice, and Image Security Act (ELVIS Act), which went into effect last month, expands the ELVIS Act to include right of publicity existing in the state to specifically protect artists, including a person's voice, and make it illegal to use content “in any means“.
The law could be a vehicle for Swift, who began her career in Nashville, where she is a partial resident, to file a lawsuit.
Tennessee Senate Majority Leader Jack Johnson, a Republican who sponsored the bill, said the misuse of AI-generated content and its impact on artists were part of the reasons it was updated.
“The rapid advancement of AI is exciting in many ways, but it also presents new challenges, especially for singers, songwriters and other music professionals,” Johnson said in a press release when Tennessee Gov. Bill Lee signed the ELVIS Act into law. CNN has reached out to the governor's office for comment.
Joseph Fishman, a law professor at Vanderbilt University whose research has focused on intellectual property and entertainment law, said one problem with the law is that it is so broad that it “covers almost any unauthorized use of a person’s image or voice that the distributor of the image, video or sound knows is unauthorized.”
Since 2019, several states have passed laws related to the use of fake content. In the 2024 session, at least 40 states have pending legislation, according to the National Conference of State Legislatures. While the laws do not apply exclusively to AI-created content, many laws are intended to target sexually explicit content and some focus on content intended to mislead voters, the group said.
When it comes to political campaigns, more than a dozen states have enacted laws to regulate the use of so-called deepfakes: realistic fake videos, audio and other content created with AI. Depending on the state, violators could face prison time and hefty fines. Candidates could be forced to resign from office or candidacy, CNN previously reported.
While there appears to be a wave of new legislation focused on AI, unauthorized use of digital replicas could be punishable under other existing laws, said Corynne McSherry, legal director of the Electronic Frontier Foundation, a nonprofit that specializes in intellectual property, open access and free speech issues.
“If you are concerned about an image of you or your face being used and you believe it is in a defamatory manner or implies a false endorsement, you probably already have rights under defamation law, possibly even under trademark law, as we have a lot of long-standing doctrines to address those kinds of situations,” McSherry said.
At the federal level, Congress has yet to pass a national framework to regulate AI, including AI-generated replicas. However, the Federal Communications Commission (FCC) has sought fines after an AI-generated robocall that mimicked President Joe Biden’s voice urged voters not to participate in the New Hampshire primary election. It used spoofing technology that violated federal caller ID laws, the FCC said.
The operator that transmitted the automated calls, Lingo Telecom, agreed on Wednesday pay a $1 million fine. Steven Kramer, the political consultant behind the call, faces a $6 million fine.
Last month, the United States Copyright Office published a report urging lawmakers to pass federal legislation to address unauthorized digital replications.
“It has become clear that the distribution of unauthorized digital replicas poses a serious threat not only in the realms of entertainment and politics, but also to private citizens,” Shira Perlmutter, copyright registrar and director of the U.S. Copyright Office, said in a statement. “We believe there is an urgent need for effective national protection against the harm that can be done to reputations and livelihoods.”
For Darrel Mottley, a patent attorney and faculty director of the intellectual property and entrepreneurship clinic at Suffolk University, it is important to remember that regulation should focus on how AI is used, not the technology itself.
“We don’t regulate technology per se, we want to regulate human behavior that uses technology in ways that we don’t consider appropriate. That’s what regulation should do,” Mottley said.
Could Taylor Swift sue Trump?
Legal experts agree that Swift could file a lawsuit under the ELVIS Act, thanks to her ties to the southern state, but the outcome is unclear.
“The ELVIS Act could be among the laws that apply to what Trump did and under which he could be held liable,” Fishman said.
In a potential lawsuit against Trump, the former president's lawyers could argue that the post was satire or parody, which is protected by the First Amendment, Fishman and McSherry said.
The ELVIS Act has an exemption for uses protected by the First Amendment, including criticism, satire and parody. Fishman noted that the boundaries of that exemption were not spelled out in the law “so no one really knows how the courts are going to draw those lines.”
“There’s a lot of murkiness around how this would actually play out if there was a lawsuit, but if that exemption doesn’t apply, it certainly seems like the release of these images is covered by this Tennessee law,” Fishman said.
The fact that some of the images were AI-generated made the situation “much more provocative,” Fishman said, but Trump could face equivalent legal risk “if he had photoshopped a photograph (or if) he was a really good cartoonist and drew something. The problem would still be the same.”
In McSherry's view, Swift could simply choose to address it outside the court system.
“Given Taylor Swift’s reach as a celebrity, I think she would feel much more effective, frankly, if she simply used her own platform to repudiate him, and that would accomplish as much as any lawsuit,” McSherry said.
With or without the rise of AI-generated content, legal experts agreed that you don't have to be a celebrity to hold people accountable if their voice, likeness or image is misused to imply a false endorsement.
