Copyrighting People

This Essay, delivered as the 2024 Donald C. Brace Lecture for The Copyright Society, reveals the increasing convergence of right of publicity and copyright laws. This convergence requires us to reconsider some accepted conclusions about copyright and to question whether copyright is the appropriate or best frame going forward to address the rising challenges posed by deepfakes, digital replicas, and voice clones. Better understanding the ways in which copyright already extends control over a person’s identity, and may expand further to do so, has never been more essential. Copyright law can protect personality rights and privacy, but if not properly circumscribed it can also be a mechanism for owning a person’s attributes and controlling and silencing that person. If we address digital replicas and voice clones by extending copyright protection to them or using a copyright-based paradigm to do so—which is the direction we are going—we must revisit copyright doctrines that unduly limit the agency of subjects captured in copyrighted works and copyright law’s allowance of largely unfettered transferability. We must better design copyright to protect people when they become captured in copyrightable works. If we do not embrace this personality-inclusive vision of copyright law, then we must instead more rigorously enforce copyright’s boundaries, and limit its encroachment on personality rights.<br><br>In Part I, I consider the accepted claim that you cannot copyright people. In Part II, I problematize this basic proposition by looking at a variety of complications to this reading of copyright law. Given this background, I consider in Part III ways in which copyright law has been weaponized to protect the personality rights of its subjects, as well as concerningly to thwart them. Finally, I conclude with some suggestions for how better to calibrate copyright law and digital replica laws to address their “collision” course with publicity and privacy rights.