AI and Likeness? Let's Ask Don Passman

This completely analog likeness of Don Passman was drawn by the impeccably organic Sam Viviano.

When we say attorney Don Passman wrote the book on the financial, legal, logistical and other slings and arrows of a music career, we’re speaking literally: His magisterial but funny and highly readable All You Need To Know About the Music Business is currently in its eleventh edition, and a discussion of AI is among that version’s several amendments. When he’s not penning vital tomes, Don is advising a starry array of clients from his office at Gang, Tyre, Ramer, Brown & Passman, Inc. So it’s kind of amazing that he took our call to talk about AI and likeness.

Are creative people concerned about unauthorized AI uses of their likeness? I’m talking specifically about the use of their faces, voices and public image.

Yes.

We’re hearing that an artist’s likeness is even more widely exploited by AI than their music.

That’s likely the case, though I haven’t seen the statistics.

What are some of the forms these unauthorized uses can take?

They can be out-and-out fraud, like using an artist’s name and likeness to endorse a product they have nothing to do with. There was one instance with Oprah’s voice simulated on a commercial, along with those of other experts who were also imitated, for [a tonic made with Hawaiian pink salt] that was supposedly for weight loss and was on a complete phony podcast. Or it could be imitating the celebrity to con money from people who think they’re actually talking to the celebrity. Or it can be pornography. Those are the extremes—it can also just be fans playing around, trying to do something clever.

How do you address it?

The sheer volume makes it a heavy lift. That’s why a number of companies, for example Vermillio, are valuable, because they have the software that tracks it, and they have systems that send cease-and-desist/takedown notices. They also have relationships with online companies and can sometimes get things done more quickly and easily because they’ll just say, “Hey, take it down. Don’t make us jump through the hoops.” And a lot of the companies are responsive. The ones that aren’t, of course, are the worst actors, and a lot of them are based in various Central and Eastern European countries.

Or somewhere in the ether.

Yeah, exactly. Where you can’t track them down so easily. The phony impersonations can be quite serious. You may have seen where someone imitated Keanu Reeves and this poor woman sold her house and possessions and was going to move out here to be with him. It can be pretty rough.

By the way, celebrity impersonations happened in the days before AI. We would periodically get people imitating one of our celebrity clients and taking some unfortunate person for a lot of money.

Celebrities, quite rightly, want to know exactly how their persona is going to be used. They all want to control what they do, which makes it very difficult to do any kind of a blanket license.”

Let’s look at the other end of the conversation, at something else Vermillio and its ilk are talking about quite a bit, too: how artists might be able to leverage the output of fans “messing around” in a way that’s profitable—is there some kind of likeness license that would allow people to use aspects of a creator’s look or sound within agreed-upon parameters?

I’m not aware of any deals like that getting done with a major celebrity. And the reason is pretty simple: Celebrities, quite rightly, want to know exactly how their persona is going to be used. To turn it over to a service… I mean, some celebrity may not care if someone creates a meme of them singing “Happy Birthday” to Mortimer in Cleveland. But most of them wouldn’t do something that cheesy. They all want to control what they do, which makes it very difficult to do any kind of a blanket license. It becomes a case-by-case thing, and that’s difficult because it means a lot of very small deals.

We’re still in such early stages of this tech cycle, which is the same one that every new technology goes through. In other words, in the beginning, there is no established marketplace, there are no set rules and nobody particularly wants to be the guinea pig. People are understandably quite protective of the image they’ve spent their career building. So they don’t want to just turn it over to someone on a carte-blanche basis. And none of these things alone in today’s world makes enough money to be interesting, so it’s hard to get their attention.

So that’s a lot of branding chips to put on the table for very little return.

Exactly. I’m not saying there won’t be a path to this down the road, but I don’t see it in the near future.

But when it does get figured out, we imagine you’ll be among the very first to know, so we’ll want your perspective.

Anytime.

Follow Don on Instagram: @donaldspassman