Report from MediaPost
In Brief – US District Judge Gregory Williams has ruled that former Arkansas Governor Mike Huckabee, now U.S. ambassador to Israel, can proceed with a lawsuit accusing Meta of allowing Facebook ads to falsely suggest he endorsed CBD gummies. Huckabee claims that Meta running the ads violated Arkansas’s Frank Broyles Publicity Rights Protection Act, which gives residents control over the commercial use of their names and images. Meta argued that even if the allegations were true, the company itself had not commercially used Huckabee’s likeness because it only earned revenue by distributing third-party advertisements. Williams had dismissed Huckabee’s lawsuit in 2024, finding that the allegations did not establish Meta knew the ads were fake. However, the 3rd Circuit Court of Appeals reversed that decision in June and reinstated the case, identifying three allegations that, if proven, could have put Meta on notice that the endorsements were fraudulent. This time, Williams ruled that Huckabee’s complaint adequately alleged commercial use by Meta.
Context – The right of publicity grants to individuals control over the commercial use of their identity. In the United State it is not enshrined in federal intellectual property law, it is instead governed by a patchwork of state statutes and common law doctrines. The issue has emerged recently in the context of AI services and the threat of AI deepfakes. While deepfake concerns often focusing on nonconsensual pornography and political disinformation, online scams and frauds, including related ads, are another major use case. The Senate NO FAKES Act would create a federal IP right of publicity and the legislation has been raised in the context of federal AI legislation. We also saw a deepfakes crossover with copyright in Europe last year when the Danish government said it was planning to amend its copyright law to give everyone copyright over their image and voice so that they could use IP “notice and takedown” regimes to force digital platforms to take down AI replicas.