Taylor Swift fake posted by Trump highlights challenges in AI misuse regulation

(CNN) — When former President Donald Trump reposted a fake image of Taylor Swift striking a pose like the iconic Uncle Sam recruiting poster, it pushed to the forefront a topic that goes beyond politics: unauthorized digital replicas.

Concerned by the proliferation of AI tools, state and federal legislators have recently launched or pushed for efforts to protect anyone against the misuse of their name, voice, image and likeness in the digital era. For experts, Trump’s social media post highlights why those broad legislative efforts are taking place, in addition to being one of the most visible bogus claims in the 2024 campaign.

Trump reposted last weekend on his Truth Social platform several images including the one depicting Taylor Swift as Uncle Sam. The image included the text, “Taylor wants you to vote for Donald Trump.” In response to the fake endorsement, Trump posted a carousel of (Swift) images, along with the comment, “I accept!”

A representative for Swift did not immediately respond to CNN’s request for comment. The pop icon has not made an endorsement in this presidential race.

In an interview with Fox Business on Wednesday, Trump denied creating the images when asked if he was worried about a potential lawsuit.

“I don’t know anything about them, other than somebody else generated them, I didn’t generate them,” Trump said. “These were all made up by other people. AI is always very dangerous in that way.”

ELVIS Act enters the building

Tennessee is among the latest states to enact a law aimed at protecting people from unauthorized use of content that mimics their image or voice.

The Ensuring Likeness Voice and Image Security Act or ELVIS Act, which went into effect last month, expands the state’s existing right-of-publicity law to specifically protect artists, including a person’s voice, and make unlawful the use of content “in any medium.”

The law could be a vehicle for Swift – who started her career in Nashville where she is part-time resident – to sue.

Tennessee Senate Majority Leader Jack Johnson, a Republican who sponsored the bill, has said the misuse of AI-generated content and the impact it has on artists were part of the reasons why the law was updated.

“The rapid advancement of AI is exciting in many ways, but it also presents new challenges – especially for singers, songwriters, and other music professionals,” Johnson said in a news release when Tennessee Gov. Bill Lee signed the ELVIS Act into law. CNN has reached out to the governor’s office for comment.

Joseph Fishman, a law professor at Vanderbilt University whose research has centered on intellectual property and entertainment law, said one of the issues with the law is that it’s so broad that “it covers just about any unauthorized use of a person’s likeness or voice that the distributor of the image or video or sound knows wasn’t authorized.”

Since 2019, several states have passed legislation related to the use of fake content. In the 2024 session, at least 40 states have pending legislation, according to the National Conference of State Legislatures. While the laws do not exclusively apply to content created by AI, many laws are intended to target sexually explicit content and some focus on content meant to deceive voters, the group said.

When it comes to political campaigns, more than a dozen states have enacted legislation to regulate the use of so-called deepfakes – realistic fake video, audio and other content created with AI. Depending on the state, violators could face prison time and hefty fines; candidates could be required to forfeit their office or nomination, CNN previously reported.

Many laws, but no federal statute

While there appears to be a wave of new AI-centered legislation, the unauthorized use of digital replicas could be punishable under other existing laws, said Corynne McSherry, legal director at the nonprofit Electronic Frontier Foundation, who specializes in intellectual property, open access and free speech issues.

“If you’re worried that there’s a use of an image of you, or your face and you think it’s in a way that’s defamatory or implies false endorsement, you probably already got rights under defamation law, potentially even under trademark law, like we have lots of long standing doctrines to address that kind of situation,” McSherry said.

At the federal level, Congress has yet to pass a nationwide framework to regulate AI, including AI-generated replicas. However, the Federal Communications Commission has sought fines after an AI-generated robocall imitating President Joe Biden’s voice urged voters not to participate in New Hampshire’s primary election. The robocalls used call-spoofing technology that violated federal caller-ID laws, the FCC said.

The carrier that transmitted the robocalls, Lingo Telecom, agreed Wednesday to pay a $1 million fine. Steven Kramer, the political consultant behind the call, is facing a $6 million fine.

Last month, the US Copyright Office released a report urging lawmakers to pass a federal law to address unauthorized digital replicas.

“It has become clear that the distribution of unauthorized digital replicas poses a serious threat not only in the entertainment and political arenas but also for private citizens,” Shira Perlmutter, register of copyrights and director of the US Copyright Office, said in a statement. “We believe there is an urgent need for effective nationwide protection against the harms that can be caused to reputations and livelihoods.”

For Darrel Mottley, a patent attorney and faculty director of the intellectual property and entrepreneurship clinic at Suffolk University, it’s important to remember that regulation should focus on how AI is used and not the technology itself.

“We don’t regulate the technology, per se, we want to regulate the human behavior of using the technology in a way that’s not what we think is appropriate. That’s kind of what the regulations should be doing,” Mottley said.

Could Taylor Swift sue Trump?

Legal experts agree that Swift could file a lawsuit under the ELVIS Act, thanks to her ties to the Southern state, but the outcome is unclear.

“The ELVIS Act could be among the laws that apply to what Trump did and under which he could be liable,” Fishman said.

In a potential lawsuit against Trump, attorneys for the former President could argue the post was satire or parody, which is protected under the First Amendment, Fishman and McSherry said.

The ELVIS Act has an exemption for uses protected by the First Amendment, including criticism, satire and parody. Fishman noted the boundaries of that exemption were not detailed in the statue “so nobody really knows how courts are going to draw those lines.”

“There’s a lot of murkiness around how this would actually play out if there were a lawsuit but if that exemption doesn’t apply, it certainly seems like posting these images is covered by this Tennessee law,” Fishman said.

The fact that some of the images were generated by AI made the situation “a lot more provocative,” Fishman says, but Trump could face an equal legal risk “if he had photoshopped a photograph (or if) he was a really good drawer and drew something. The problem would still be the same.”

In McSherry’s view, Swift could simply opt to address it outside the court system.

“Given Taylor Swift’s reach as a celebrity, I think she could feel a lot more effective, frankly, if she just used her own platform to repudiate it, and that would accomplish as much as any lawsuit,” McSherry said.

With or without the rise of AI-generated content, legal experts agreed that you don’t have to be a celebrity to hold people accountable if your voice, likeness or image is misused to imply false endorsement.

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