Taylor Swift has, again, been thrust into a narrative she would likely much prefer to be excluded from. This time, it is former President Donald Trump’s second bid for reelection. On August 18, Trump shared four images to his Truth Social account, one bearing Swift’s image with the message “Taylor wants you to vote for Donald Trump,” and the other three depicting young women in “Swifties for Trump” T-shirts. Though one of the images appears to be a genuine photograph of a woman proclaiming to be part of “Swifties for Trump,” the other three, including the image of Swift herself, are the product of Artificial Intelligence (AI).
The internet, including both political divides and Swift’s legion of fans, have become tortured poets in the online discourse regarding Swift’s legal rights and Trump’s posting.
Defamation
The first query at people’s fingertips is whether or not Trump’s posts constitute defamation. Under federal law 28 U.S. Code § 4101, defamation is defined as “forms of speech [that] are false, have caused damage to reputation or emotional distress, have presented any person in a false light, or have resulted in criticism, dishonor, or condemnation of any person.”
To prove prima facie defamation, a plaintiff such as Swift would need to show:
a false statement purporting to be fact;
publication or communication of that statement to a third person;
fault amounting to at least negligence; and
damages, or some harm caused to the reputation of the person or entity who is the subject of the statement.
Competent counsel should be able to demonstrate the first three elements, as Swift has endorsed Kamala Harris for president. Trump may argue it was meant in jest and not as a statement of fact, which is a defense to a defamation claim. However, given that he posted the same, along with real photos of Swift fans supporting Trump, that argument likely would fail.
For Swift, under federal law, the challenge would be demonstrating that she was harmed by the false statement. Harm by defamation can come in several forms, including economic harm (i.e., lost album sales), emotional distress or reputational harm. For Swift, she is expected to be particularly concerned with her reputational harm (given the name of her sixth studio album is Reputation).
Under Tennessee law, where Swift is perhaps a resident (she also has residences in California, New York and Rhode Island), a successful defamation claim would require her to prove either that (a) Trump knew that the statement was false and defaming to her; or (b) Trump made the statement with reckless disregard for the truth of the statement or negligence in failing to ascertain the truth of the statement. Sullivan v. Baptist Memorial Hosp., 995 S.W.2d 569, 571 (Tenn. 1999) Swift could prove the latter as it seems unlikely that Trump (or his team) reached out for confirmation to Swift before posting.
Right to Publicity
Thirty-five states protect the right to publicity either by statute or common law, or a combination of the two, though there is some variation in what is required to make out a prima facie case. Given that Taylor Swift is a living person and a public figure, she would be able to prove that she has a right to publicity as a threshold matter.
Second, one of the images is a digital rendering of her face and body, which constitutes the use of her identity and/or persona. Third, it can be inferred from her debate night Instagram post, in which she condemns the “false[] endors[ment]” that the image was made without her permission.
Jurisdictions are split on the next elements, however, which could foreclose a successful right of publicity suit in these or similar circumstances. The analysis depends largely upon whether the applicable state law considers the right of publicity as flowing from the right to privacy of individuals or from the right to be free from unfair commercial competition. Where the latter applies, Swift’s argument would be difficult. Even under the former, the fact that Trump’s post was not commercial in nature makes it unlikely that any quest for karma would end in her favor. That is because commercial speech receives much more limited First Amendment protection than other forms of speech, especially political speech.
Similarly, under federal law, the misappropriation must occur in a commercial setting. Section 43(a) of the Lanham Act (15 USC 1125) provides a private right of action for false endorsement, but requires that the false endorsement occur in the context of interstate commerce “in connection with any goods or services” and commercial use. A recent incident involving a deep fake of beloved Tom Hanks purporting to endorse a dental office went viral. Hanks eventually had to publicly denounce the ad in order to protect his name, image, and likeness.
Trademark/Copyright Protection
As Swift and her legal team know all too well, trademarks have been an integral part of deterring third parties from siphoning off her success. The word “Swifties” is no exception, as it is trademarked under Registration Number 6646529 with the USPTO by her company, TAS Rights Management, LLC. This trademark covers online retail services. Perhaps more aptly, her “Swiftie” trademarks cover women’s and men’s tops, jewelry, pins, and bags. A quick Etsy search reveals that “Swifties for Trump” apparel and pins are already up for sale.
This is probably a violation of Swift’s trademark rights and her “persona.”
For Swift, she presumably does not own the copyrights to the underlying photo that made up the AI post. While the AI systems generated the deepfake, it is likely that the program used a press photo or amalgamation of photos to produce the deepfake. That is, the photographer(s), not Swift, would be the owner(s) of the underlying copyright, and Swift has no copyright protection for such image, altered or not. Celebrities such as Bella Hadid and Emily Ratajkowski have been sued recently for their use of photographs of themselves without the photographer’s permission. Simply because it is a picture of them, copyright laws do not automatically extend to an individual.
Further Legal Protection
Presently, there are no federal laws or regulations regarding the use of deepfakes. There is current pending proposed legislation to protect individuals from the dangers of AI deepfakes. The Deepfake Accountability Act proposed by Yvette Clarke (D. NY) in 2023 is still sitting in committee.
The proposed Act would impose criminal penalties and a minimum civil penalty of $50,000 per deepfake that intended to “humiliate or otherwise harass the person falsely exhibited” or “interfere in an …election”. Similarly, the No Fakes Act, which aims to protect the voice and visual likeness of all individuals from gen AI, is moving through the House with strong bipartisan support. While technology advancements are almost always going to outpace legislation, the recognition that AI can be harmful to all individuals seems to have made its way Congress’ agenda.
Additionally, several states have taken action, including California having signed various protective regulations into law as recently as September 17, 2024. California now has laws regulating AI robocalls, explicit deepfakes, AI generated watermarks, election deepfakes and use of AI-generated acting performances. Nine other states have enacted some form of laws regulating deepfakes: Florida, Indiana, Louisiana, Mississippi, New Mexico, Oregon, South Dakota, Tennessee, Texas, and Washington.
Generally, social media platforms are incentivized to remove deepfakes, as it is required to maintain their safe harbor from infringement liability under the Digital Millennium Copyright Act (DMCA). Under the DMCA, platforms do not have the freedom to make determinations about what is infringing or not, once content is reported as infringing by the rights owner, the platform must remove it or lose this safe harbor and risk being held liable if there is infringement. However, Truth Social is unlike other platforms, as it is directly the mouthpiece of its (current) largest shareholder, Trump. Whether he will take action to avoid the legal exposure is yet to be seen, as is Swift’s legal pushback.
Though the authenticity of the endorsement discussed here was likely unconvincing to most media-savvy social media users, AI is ever-evolving. Next time, if her fans are actually duped, Swift may not be inclined to shake it off.
The post A Privacy Tort Out of Our Wildest Dreams? Will Taylor Swift Defend her Reputation from Donald Trump’s AI Hoax? appeared first on Attorney at Law Magazine.
