Swift Revenge is possible. How Taylor Swift can reclaim her Image 

By Dr Angela Adrian

Taylor Swift’s identity was stolen and manipulated in the worst possible manner imaginable. AI images trained from photographs and videos of her were contorted to pornographic ends by unscrupulous, and likely impotent, low-life trolls. Identity is not merely a set of facts: name, location, employment, position, age, gender, or merely certain online behaviours. Some part of identity is controlled by the individual, but most of identity is created by the world in which that individual operates. We can think of identity as a streaming picture of a life within a particular context. The role of groups in shaping ‘real life’ identities is implicit, and the AI use of our images is yet another facet of the multiplicity of ‘real life’ identity. Our online lives demonstrate this point. As such, each discrete identity needs protection from the new threats that arise from new technologies.

Kevin Frazier, an Assistant Professor at St. Thomas University College of Law and Senior Research Affiliate with the Institute for Law and AI, wrote an article entitled Swift Justice? Assessing Taylor’s Legal Options in Wake of AI-Generated Images for TechPolicy.Press. In this article, he concluded: “Swift likely does not have viable legal claims under current law. Still, if anyone could fund and persevere through litigation that results in common law adjustments in favor of victims, it may be her.”

I disagree. There is a solution to Ms. Swift’s problem and the problem of nonconsensual pornography (aka revenge porn). That solution is the Guernsey Images Rights Registry and its Image Rights Ordinance (IRO) which protects an identity. The concept of identity can be described as a series of performances in which ‘impression management’ is used to portray ourselves appropriately in different environments. 

The IRO law states that any person, be they a natural person or a legal entity, can register their personality as a unique and exploitable asset. The registration of a personality immediately captures all present, historic, and future images associated with that personality. In the context of the law, ‘image’ is framed extremely widely and means the name of the person and includes: “…the voice, signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures, mannerisms, and any other distinctive characteristic or personal attribute of a personage, or… [ ] …any photograph, illustration, image, picture, moving image or electronic or other representation (‘picture’) of a personage and of no other person …” (IRO, s 3(1)(b) and (c)).

Mr. Frazier and his esteemed colleagues are correct that copyright law cannot help her unless she is the owner of the underlying original work of authorship fixed in a tangible medium even if she is the subject of the alleged original work of authorship fixing her image in that tangible medium. Even if she collaborated with the original author, she could only hope to take down the actual copyrighted images, not necessarily the images created via artificial intelligence later. These later images being labeled deep fakes. Again, as Eric Goldman, Associate Professor of Law and Director of the High Tech Law Institute at Santa Clara University School of Law, pointed out authentic v inauthentic works of authorship cause further legal hurdles.

They move on to discuss the privacy-related claims or the flip side of that coin – Publicity rights. Another murky area of law as it is based on the various laws that change from state to state. Publicity laws are based on personal rights; whereas, copyright is a property right. Property rights are rights against the world and are easier to defend. Preventative measures are in place to protect them. Personal rights are between individuals; only curative measures can be taken to enforce them.

Some states have made an effort to make publicity rights more of a property right for the famous by defining the improper use of their name, photograph, or likeness as a misappropriation if used for a commercial purpose. The problem with these laws is that they do not protect everyday people subjected to revenge porn (aka nonconsensual pornography) or misappropriation of their image in Artificial Intelligence training. This adds another layer of legal complexity in that if the image is not authentic, then no crime or tort has been committed, especially if no one believes the images to be true.

Further as Unger noted to Frazier, criminal prosecution would be up against a strong backlash from the First Amendment: “If government moves to prohibit the production of generative AI works, the producers/developers may claim they have a First Amendment right to produce this “art,” and I predict the developers will prevail. However, courts may consider the Swift images as obscene, which would limit the First Amendment protections under current case law. Of course, that wouldn’t apply to all generative AI deepfakes—just those that breach the line into obscenity.”

Let us return to the Guernsey Images Rights Registry. The high-jacking of Taylor Swift’s image demonstrates that you can capture most elements of a personality via the digital ephemera of a life captured in pictures, video, and sound. Can this be protected? Yes. Written work, social network interactions, personal data, and other similar self-expression can be used to recreate a personality representing considerably more than the sum of the original parts. Defining a personality as an entity’s ability to express something unique by any means, then the digital personality created by these various companies meets that criterion. 

The Guernsey law is extensive due to the final clause defining a personality: “the voice, signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures, mannerisms, and any other distinctive characteristic or personal attribute…” (emphasis added) are also explicitly protected under the law. (IRO s 3(1)(b)) That last catch-all provision neatly captures any personal identifiers, data, sound/voice/video files, views, and expressions – your digital ephemera. The law appreciates that sometimes it is the combination of otherwise non-unique data that uniquely identifies each of us. Each and any of these characteristics are registrable, provided they are recognizable by a “wide or relevant sector of the public,” including your family or group of friends. (IRO s 28(2))

The law has been written to comply with international IP conventions. Thus, it should be enforceable in jurisdictions where reciprocal recognition of relevant legislation exists, providing infringement can be evidenced in Guernsey (irrespective of where it occurs). The protection is potentially global in reach. (E.g., UK – Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK). California – Uniform Foreign-Country Money Judgments Recognition Act)

Creating a registered personality and associated images in this manner generates a statutory property right, and not just a personal right. (IRO s 2(1)) The registered personality can be owned by the individual during their lifetime and bequeathed at death just like any other property right. Alternatively, this property can be placed into an appropriate corporate holding structure in a jurisdiction of choice. This property right can be renewed (in a similar manner to a trademark) very simply every ten years for as long as desired. (IRO ss 18 & 19)

Once registration is complete, all recognizable characteristics of that personality are automatically protected against unauthorized commercial exploitation by others.  Taylor Swift can reclaim control of her image in a similar manner she reclaimed control of her artistic output.  Except this time, she can sue anyone for misusing her image.