Tag: digital-replicas

Trump’s Executive Order on AI

News media headlines are trumpeting that the Executive Order preempts state AI laws. This is not true. It directs this administration to try to strike down some state AI laws. It contemplates working with Congress to formulate and enact preemptive legislation. It is doubtful that a President could constitutionally preempt state laws by executive order.

On December 11, 2025, President Trump issued another executive order. This one is intended to promote “national dominance” in “a race with adversaries for supremacy.” To “win,” the Order says, AI companies should not be encumbered by state regulation. “The policy of the United States,” the Order says, is “to sustain and enhance the United States’ global AI dominance through a minimally burdensome national policy framework for AI.” It sets up an AI Litigation Task Force to challenge state AI laws that allegedly do not do that.

Excepted from the Order are state laws on child safety protections, data center infrastructure, and state government use of AI.

Which State AI Laws?

The Order speaks generally about “state AI laws,” but does not define the term. In fact, AI legal issues are wide-ranging. Here are some examples of state AI laws:

Stalking and Harassment

A North Dakota statute criminalizes using a robot to frighten or harass another person. It defines a robot to include a drone or other system that uses AI technology. (N.D. Cent. Code § 12.1-17-07.(1), (2)(f)). This appears to be a “state AI law.” North Dakota statutes also prohibit stalking accomplished by using either a robot or a non-AI form of technology. (N.D. Cent. Code § 12.1-17-07.1(1)(d)). Preempting this statute would produce an anomalous result. It would be a crime to stalk somebody unless you use an AI-powered device to do it.

Political Deepfakes

Several states have enacted laws prohibiting the distribution of political deepfakes to influence an election. Regulations range from a prohibition against the distribution of a deepfake to influence an election within a specified time period before the election to requiring disclosure that it is AI-generated. Minn. Stat. § 609.771 is an example of such a regulation. The need for this kind of statute was highlighted in 2024 when someone used AI to clone Joe Biden’s voice and generate an audio file that sounded like Mr. Biden himself was urging people not to vote for him.

Sexual Deepfakes

Both state and federal governments have enacted laws aimed at curbing the proliferation of “revenge porn.” The TAKE IT DOWN Act is an example. Minn. Stat. § 604.32 is another example (deepfakes depicting intimate body parts or sexual acts).

State and federal laws in this area cover much of the same ground. The principal difference is that the federal crime must involve interstate commerce; state crimes do not. The only practical effect of preemption of this kind of state AI law, therefore, would be to eliminate state prohibitions of wholly intrastate sexual deepfakes. If the Executive Order succeeds in its objectives, then state laws that prohibit the creation or distribution of sexual deepfakes wholly within the same state, as some do, would be preempted, with the result that making and distributing sexual deepfakes would be lawful so long as you only transmit it to other people in your state and not to someone in a different state.

Digital Replicas

Many states have enacted laws prohibiting or regulating the unauthorized creation and exploitation of digital replicas. The California Digital Replicas Act and Tennessee’s ELVIS Act are examples. AI is used in the creation of digital replicas. It is unclear whether these kinds of enactments are “state AI laws.” Arguably, a person could use technologies more primitive than generative-AI to create a digital image of a person. If these statutes are preempted only to the extent they apply to AI-generated digital replicas, then it would seem that unauthorized exploiters of other people’s faces and voices for commercial gain would be incentivized to use AI to engage in unauthorized commerceial exploitation of other people.

Child Pornography

Several states have either enacted laws or amended existing laws to bring AI-generated images of what look like real children within the prohibition against child pornography. See, e.g., N.D. Cent. Code § 12.1.-27.2—01.  The Executive Order exempts “child safety protections,” but real children do not necessarily have to be used in AI-generated images. This kind of state statute arguably would not come within the meaning of a “child safety protection.”

Health Care Oversight

California’s Physicians Make Decisions Act requires a human person to oversee health care decisions about medical necessity. This is to ensure that medical care is not left entirely up to an AI bot. The law was enacted with the support of the California Medical Association to ensure that patients receive adequate health care. If the law is nullified, then it would seem that hospitals would be free to replace doctors with AI chatbots.

Chatbots

Some states prohibit the deceptive use of a chatbot, such as by falsely representing to people who interact with one that they are interacting with a real person. In addition, some states have enacted laws requiring disclosure to consumers when they are interacting with a non-human AI. See, e.g., the Colorado Artificial Intelligence Act.

Privacy

Some states have enacted either stand-alone laws or amended existing privacy laws to ensure they protect the privacy of personally identifiable information stored by AI systems. See, e.g., Utah Code 13-721-201, -203 (regulating the sharing of a person’s mental health information by a chatbot); and amendments to the California Consumer Privacy Act making it applicable to information stored in an AI system.

Disclosure

California’s Generative AI Training Data Transparency Act requires disclosure of training data used in developing generative-AI technology.

The Texas Responsible Artificial Intelligence Governance Act

Among other things, the Texas Responsible AI Governance Act prohibits the use of AI to restrict constitutional rights, to discriminate on the basis of race, or to encourage criminal activity. These seem like reasonable proscriptions.

Trump’s “AI czar,” venture capitalist David Sacks, has said the administration is not gong to “push back” on all state laws, only “the most onerous” ones. It is unclear which of these will be deemed “onerous.”

State AI Laws are Not Preempted

News media headlines are trumpeting that the Executive Order preempts state AI laws. This is not true. It directs this administration to try to strike down some state AI laws. It contemplates working with Congress to formulate and enact preemptive legislation. It is doubtful that a President could constitutionally preempt state laws by executive order.

Postscript

Striving for uniformity in the regulation of artificial intelligence is not a bad idea. There should be room, though, for both federal and state legislation. Rather than abolishing state laws, a uniform code or model act for states might be a better idea. Moreover, if we are going to start caring about an onerous complex of differing state laws, and feeling a need to establish a national framework, perhaps the President and Congress might wish to address the sprawling morass of privacy and data security regulations in the United States.

 

Voice Cloning

Copyright cannot be claimed in a voice. Copyright law protects only expression, not a person’s corporeal attributes.

Nipper, painting of dog listening to phonograph, by Francis Barraud (1898-1899)
Painting of Nipper by Francis Barraud (1898-99); subsequently used as a trademark with “His Master’s Voice.”

Lehrman v. Lovo, Inc.

On July 10, 2025, the federal district court for the Southern District of New York issued an Order granting in part and denying in part a motion to dismiss a putative class action lawsuit that Paul Lehrman and Linnea Sage commenced against Lovo, Inc. The lawsuit, Lehrman v. Lovo, Inc., alleges that Lovo used artificial intelligence to make and sell unauthorized “clones” of their voices.

Specifically, the complaint in Lehman v. Lovo, Inc. alleges that the plaintiffs are voice-over actors. For a fee, they read and record scripts for their clients. Lovo allegedly sells a text-to-speech subscription service that allows clients to generate voice-over narrations. The service is described as one that uses “AI-driven software known as ‘Generator’ or ‘Genny,'” which was “created using ‘1000s of voices.'” Genny allegedly creates voice clones, i.e., copies of real people’s voices. Lovo allegedly granted its customers “commercial rights for all content generated,” including “any monetized, business-related uses such as videos, audio books, advertising promotion, web page vlogging, or product integration.” (Lovo terms of service.) The complaint alleges that Lovo hired the plaintiffs to provide voice recordings for “research purposes only,” but that Lovo proceeded to exploit them commercially by licensing their use to Lovo subscribers.

This lawsuit ensued.

The complaint sets out claims for:

  • Copyright infringement
  • Trademark infringement
  • Breach of contract
  • Fraud
  • Conversion
  • Unjust enrichment
  • Unfair competition
  • New York civil rights laws
  • New York consumer protection laws.

The defendant moved to dismiss the complaint for failure to state a claim.

The copyright claims

Sage alleged that Lovo infringed the copyright in one of her voice recordings by reproducing it in presentations and YouTube videos. The court allowed this claim to proceed.

Plaintiffs also claimed that Lovo’s unauthorized use of their voice recordings in training its generative-AI product infringed their copyrights in the sound recordings. The court ruled that the complaint did not contain enough factual detail about how the training process infringed one of the exclusive rights of copyright ownership. Therefore, it dismissed this claim with leave to amend.

The court dismissed the plaintiffs’ claims of output infringement, i.e., claims that the “cloned” voices the AI tool generated infringed copyrights in the original sound recordings.

Copyright protection in a sound recording extends only to the actual recording itself. Fixation of sounds that imitate or simulate the ones captured in the original recording does not infringe the copyright in the sound recording.

This issue often comes up in connection with copyrights in music recordings. If Chuck Berry writes a song called “Johnny B. Goode” and records himself performing it, he will own two copyrights – one in the musical composition and one in the sound recording. If a second person then records himself performing the same song, and he doesn’t have a license (compulsory or otherwise) to do so, that person would be infringing the copyright in the music but not the copyright in the sound recording. This is true even if he is very good at imitating Berry’s voice and guitar work. For a claim of sound recording infringement to succeed, it must be shown that the actual recording itself was copied.

Plaintiffs did not allege that Lovo used Genny to output AI-generated reproductions of their original recordings. Rather, they alleged that Genny is able to create new recordings that mimic attributes of their voices.

The court added that the sound of a voice is not copyrightable expression, and even if it were, the plaintiffs had registered claims of copyright in their recordings, not in their voices.

The trademark claims

In addition to infringement, the Lanham Act creates two other potential bases of trademark liability: (1) false association; and (2) false advertising. 15 U.S.C. sec. 1125(a)(1)(A) and (B). Plaintiffs asserted both kinds of claims. The judge dismissed these claims.

False association

The Second Circuit court of appeals recently held, in Electra v. 59 Murray Enter., Inc. and Souza v. Exotic Island Enters., Inc., that using a person’s likeness to create an endorsement without the person’s permission can constitute a “false association” violation. In other words, a federally-protected, trademark-like interest in one’s image, likeness, personality and identity exists. (See, e.g., Jackson v. Odenat.)

Although acknowledging that this right extends to one’s voice, the judge ruled that the voices in this case did not function as trademarks. They did not identify the source of a product or service. Rather, they were themselves the product or service. For this reason, the judge ruled that the plaintiffs had failed to show that their voices, as such, are protectable trademarks under Section 43(a)(1)(A) of the Lanham Act.

False Advertising

Section 43(a)(1)(B) of the Lanham Act (codified at 15 U.S.C. sec. 1125(a)(1)(B)) prohibits misrepresentations about “the nature, characteristics, qualities, or geographic origin of . . . goods, services, or commercial activities.” The plaintiffs claimed that Lovo marketed their voices under different names (“Kyle Snow” and “Sally Coleman.”) The court determined that this was not fraudulent, however, because Lovo marketed them as what they were, namely, synthetic clones of the actors’ voices, not as their actual voices.

Plaintiffs also claimed that Lovo’s marketing materials falsely stated that the cloned voices “came with all commercial rights.” They asserted that they had not granted those rights to Lovo. The court ruled, however, that even if Lovo was guilty of misrepresentation, it was not the kind of misrepresentation that comes within Section 43(a)(1)(B), as it did not concern the nature, characteristics, qualities, or geographic origin of the voices.

State law claims

Although the court dismissed the copyright and trademark claims, it allowed some state law claims to proceed. Specifically, the court denied the motion to dismiss claims for breach of contract, violations of sections 50 and 51 of the New York Civil Rights Law, and violations of New York consumer protection law.

Both the common law and the New York Civil Rights Law prohibit the commercial use of a living person’s name, likeness or voice without consent. Known as “misappropriation of personality” or violation of publicity rights, this is emerging as one of the leading issues in AI law.

The court also allowed state law claims of false advertising and deceptive trade practices to proceed. The New York laws are not subject to the “nature, characteristics, qualities, or geographic origin” limitation set out in Section 43(a) of the Lanham Act.

Conclusion

I expect this case will come to be cited for the rule that copyright cannot be claimed in a voice. Copyright law protects only expression, not a person’s corporeal attributes. The lack of copyright protection for a person’s voice, however, does not mean that voice cloning is “legal.” Depending on the particular facts and circumstances, it may violate one or more other laws.

It also should be noted that after the Joe Biden voice-cloning incident of 2024, states have been enacting statutes regulating the creation and distribution of voice clones. Even where a specific statute is not applicable, though, a broader statute (such as the FTC Act or a similar state law) might cover the situation.

Images and references in this blog post are for illustrative purposes only. No endorsement, sponsorship or affiliation with any person, organization, company, brand, product or service is intended, implied, or exists.

Joe Biden portrait
Official portrait of Vice President Joe Biden in his West Wing Office at the White House, Jan. 10, 2013. (Official White House Photo by David Lienemann)

 

Generative AI: Perfect Tool for the Age of Deception

For many reasons, the new millennium might well be described as the Age of Deception. Cokato Copyright Attorney Tom James explains why generative-AI is a perfect fit for it.

Woman's face superimposed on dense computer code, Illustrating generative AI
Image by Gerd Altmann on Pixabay.

What is generative AI?

“AI,” of course, stands for artificial intelligence. Generative AI is a variety of it that can produce content such as text and images, seemingly of its own creation. I say “seemingly” because in reality these kinds of AI tools are not really independently creating these images and lines of text. Rather, they are “trained” to emulate existing works created by humans. Essentially, they are derivative work generation machines that enable the creation of derivative works based on potentially millions of human-created works.

AI has been around for decades. It wasn’t until 2014, however, that the technology began to be refined to the point that it could generate text, images, video and audio so similar to real people and their creations that it is difficult, if not impossible, for the average person to tell the difference.

Rapid advances in the technology in the past few years have yielded generative-AI tools that can write entire stories and articles, seemingly paint artistic images, and even generate what appear to be photographic images of people. As I explained in AI Legal Issues, AI holds great potential as a facilitator of deception. Deception is so ubiquitous now, in fact, that AI tools themselves are joining in.

AI “hallucinations” (aka lies)

In the AI field, a “hallucination” occurs when an AI tool (such as ChatGPT) generates a confident response that is not justified by the data on which it has been trained.

For example, I queried ChatGPT about whether a company owned equally by a husband and wife could qualify for the preferences the federal government sets aside for women-owned businesses. The chatbot responded with something along the lines of “Certainly” or “Absolutely,” explaining that the U.S. government is required to provide equal opportunities to all people without discriminating on the basis of sex, or something along those lines. When I cited the provision of federal law that contradicts what the chatbot had just asserted, it replied with an apology and something to the effect of “My bad.”

I also asked ChatGPT if any U.S. law imposes unequal obligations on male citizens. The chatbot cheerily reported back to me that no, no such laws exist. I then cited the provision of the United States Code that imposes an obligation to register for Selective Service only upon male citizens. The bot responded that while that is true, it is unimportant and irrelevant because there has not been a draft in a long time and there is not likely to be one anytime soon. I explained to the bot that this response was irrelevant. Young men can be, and are, denied the right to government employment and other civic rights and benefits if they fail to register, regardless of whether a draft is in place or not, and regardless of whether they are prosecuted criminally or not. At this point, ChatGPT announced that it would not be able to continue this conversation with me. In addition, it made up some excuse. I don’t remember what it was, but it was something like too many users were currently logged on.

These are all examples of AI hallucinations. If a human being were to say them, we would call them “lies.”

Generating lie after lie

AI tools regularly concoct lies. For example, when asked to generate a financial statement for a company, a popular AI tool falsely stated that the company’s revenue was some number it apparently had simply made up. According to Slate, in their article, “The Alarming Deceptions at the Heart of an Astounding New Chatbot,” users of large language models like ChatGPT have been complaining that these tools randomly insert falsehoods into the text they generate. Experts now consider frequent “hallucination” (aka lying) to be a major problem in chatbots.

ChatGPT has also generated fake case precedents, replete with plausible-sounding citations. This phenomenon made the news when Stephen Schwartz submitted six fake ChatGPT-generated case precedents in his brief to the federal district court for the Southern District of New York in Mata v. Avianca. Schwartz reported that ChatGPT continued to insist the fake cases were authentic even after their nonexistence was discovered. The judge proceeded to ban the submission of AI-generated filings that have not been reviewed by a human, saying that generative-AI tools

are prone to hallucinations and bias…. [T]hey make stuff up – even quotes and citations. Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices,… generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to…the truth.

Judge Brantley Starr, Mandatory Certification Regarding Generative Artificial Intelligence.

Facilitating defamation

Section 230 of the Communications Decency Act generally shields Facebook, Google and other online services from liability for providing a platform for users to publish false and defamatory information about other people. That has been a real boon for people who like to destroy other people’s reputations by means of spreading lies and misinformation about them online. It can be difficult and expensive to sue an individual for defamation, particularly when the individual has taken steps to conceal and/or lie about his or her identity. Generative AI tools make the job of defaming people even simpler and easier.

More concerning than the malicious defamatory liars, however, are the many people who earnestly rely on AI as a research tool. In July, 2023, Mark Walters filed a lawsuit against OpenAI, claiming its ChatGPT tool provided false and defamatory misinformation about him to journalist Fred Riehl. I wrote about this lawsuit in Generative AI: The Top 12 Lawsuits. Shortly after this lawsuit was filed, a defamation lawsuit was filed against Microsoft, alleging that its AI tool, too, had generated defamatory lies about an individual. Generative-AI tools can generate false and defamation statements about individuals even if no one has any intention of defaming anyone or ruining another person’s reputation.

Facilitating false light invasion of privacy

Pot, meet kettle; kettle, pot

“False news is harmful to our community, it makes the world less informed, and it erodes trust. . . . At Meta, we’re working to fight the spread of false news.” Meta (nee Facebook) published that statement back in 2017.  Since then, it has engaged in what is arguably the most ambitious campaign in history to monitor and regulate the content of conversations among humans. Yet, it has also joined other mega-organizations Google and Microsoft in investing billions of dollars in what is the greatest boon to fake news in recorded history: generative-AI.

Toward a braver new world

It would be difficult to imagine a more efficient method of facilitating widespread lying and deception (not to mention false and hateful rhetoric) – and therefore propaganda – than generative-AI. Yet, these mega-organizations continue to sink more and more money into further development and deployment of these lie-generators.

I dread what the future holds in store for our children and theirs.