In a striking example of the complexities surrounding digital content and personal likeness, former President Donald Trump’s repost of a fabricated image featuring Taylor Swift has stirred considerable debate. The image, which depicted Swift in a pose akin to the famous Uncle Sam recruitment poster with the text, “Taylor wants you to vote for Donald Trump,” was shared on Trump’s Truth Social platform. This false portrayal, suggesting Swift’s endorsement of Trump, has amplified concerns about the misuse of digital replicas, given that Swift herself has not publicly supported any presidential candidate in the 2024 election.
In response to such digital manipulations, several states have enacted or are considering legislation to protect individuals from unauthorized use of their likenesses, voices, and images. Notably, Tennessee recently introduced the Ensuring Likeness Voice and Image Security Act, or ELVIS Act, which expands the state's existing right-of-publicity laws. The ELVIS Act aims to address the challenges posed by AI-generated content by making it unlawful to use a person’s likeness or voice without authorization, providing a potential legal recourse for individuals like Swift.
Tennessee Senate Majority Leader Jack Johnson, a Republican who sponsored the bill, emphasized the need for such legislation to protect artists and other public figures from digital misuses. The law’s broad provisions could enable Swift to pursue legal action if she chooses, although the law’s expansive scope may complicate the legal process. Joseph Fishman, a law professor at Vanderbilt University, notes that while the ELVIS Act could serve as a basis for a lawsuit, its broad language and exemptions for satire and parody could affect the outcome.
The broader legal context reveals a patchwork of state laws addressing digital replicas and deepfakes. Since 2019, numerous states have introduced legislation targeting fake content, particularly in political contexts. Over a dozen states have enacted laws regulating deepfakes, which are realistic fake videos, audio, and other AI-generated content. These regulations reflect an ongoing effort to address the risks associated with advanced AI technologies, although comprehensive federal legislation remains absent.
At the federal level, specific cases such as AI-generated robocalls imitating President Joe Biden’s voice have prompted regulatory responses. The Federal Communications Commission recently fined Lingo Telecom and political consultant Steven Kramer for their roles in these deceptive calls. This case underscores the need for regulatory measures to address the misuse of AI technologies in influencing voter behavior.
The US Copyright Office has also called for federal legislation to address the issue of unauthorized digital replicas, citing the growing threat to both public figures and private individuals. Shira Perlmutter, Register of Copyrights, highlighted the urgent need for nationwide protections against the harms caused by such digital content.
Legal experts like Corynne McSherry of the Electronic Frontier Foundation suggest that existing legal frameworks, such as defamation and trademark laws, might already offer some protection against unauthorized digital replicas. However, they acknowledge that these laws may not fully address the complexities of AI-generated content. Darrel Mottley, a patent attorney, argues for a focus on regulating the misuse of AI technologies rather than the technology itself to ensure legal frameworks remain relevant in a rapidly evolving digital landscape.
In the case of Taylor Swift and Donald Trump, Swift could potentially file a lawsuit under the ELVIS Act if the misuse of her image is deemed unauthorized. However, Trump’s defense might argue that the post falls under First Amendment protections for satire and parody. The resolution of such a case would depend on how courts interpret these legal nuances and exemptions.
