Artificial Intelligence, Augmented & Virtual Reality: Media, Entertainment and Legal Implications

1. BRING THE HEAT

2. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Artificial Intelligence, Augmented & Virtual Reality
Advertising & Marketing
Celebrity and Sports Endorsements
Rights of Publicity: NIL
Ownership
Intellectual Property Rights
Bloggers, Vloggers, Experts, Influencers and Consumers
Infringement & Misappropriation
Plagiarism, Defamation
Confidentiality
Fake News, Disinformation & Misinformation

3. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Bing Chat
ChatGPT
Jasper AI
YouChat
Chatsonic
Watson
Cortana
Google Bard
Socratic by Google
(for kids and students)
Here, There and Everywhere!

4. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Coca‐Cola : MyCoke” Web World
Barbie :
Proprietary Virtual
World
Johnson & Johnson: Splenda Island In Second
Life
H&R Block:
A virtual “office” in Second Life
Remember the Very First Brands in Virtual Worlds?

5. ENDORSEMENTS & MARKETING Scottsdale
Scottsdal
e
What’s an Endorsement?
A verbal or visual communication that consumers,
acting reasonably, would be likely to understand to be
expressing the opinions, beliefs, findings, or
experiences of someone other than the sponsoring
advertiser.
Section 5 of the Federal Trade Commission Act prohibits “unfair or
deceptive acts or practices in or affecting commerce.”
Note: The FTC and the Courts now use the terms “endorsement” and “testimonial” virtually interchangeably.

6. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
NIL: Rights of Privacy & Publicity
The right to control use of your name, image and/or likeness for commercial purposes.
Every living individual has a right of privacy and the use of their name, likeness, photograph,
voice, distinctive characteristics or indicia of identity for purposes of advertising or trade is
prohibited without the person’s written consent.
Celebrities have a right of publicity: If a person is recognizable or one can identify distinctive
characteristics or trademarks of an individual – apparel, voice, caricature, silhouette ‐ get a
release.
Under many state laws, the right survives and can be protected after death.
The FTC defines an expert as an individual, group, or institution possessing, as a result of
experience, study, or training, knowledge of a particular subject, which knowledge is superior to
what ordinary individuals generally acquire.
Publicity became a property right, rather than personal right [In Factors v. Pro Arts, 597 F.2d
215 (2d Cir. 1978), regarding an Elvis Presley poster, a ruling that held publicity was a
property right, surviving the death of the celebrity].

7. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
White v. Samsung Electronics
Do I Look Like a Celebrity?

8. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Secure Necessary Rights: Intellectual Property
™
©
®

9. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
But These People are in the News (your honor) !

10. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
ʺUnder the law, an act or practice is deceptive if it misleads ʹa significant minorityʹ of consumers. Even
if some readers are aware of these deals, many readers aren’t.
That’s why disclosure is important.ʺ

11. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Celebrity Endorsements: OUCH!
The $30mm Fox Super Bowl Promotion (2017)

12. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
The Challenge for Advertisers
Find a celebrity that aligns well with the brand and its values.
Ensure the celebrity actually uses your product (and not that of a
competitor).
Pray fervently the celebrity avoids any scandals, screw ups and
embarrassing activities while they are the face of, and
spokesperson for, your brand.

13. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Endorsements are claims
Advertisers are liable
If perceived as sponsored, a consumer becomes an ‘endorser’
Endorser must be a user and the depiction typical of a consumer’s
expectations
Endorsers can’t make claims the advertiser can’t substantiate
Except where a celebrity is clearly a paid actor, if a celebrity or expert is
compensated (not just money), disclosures are required
Consumers can’t be paid, coerced or influenced to provide an endorsement
What You Need to Know

14. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Remember the Very First Viral Computer‐Generated Video?

15. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Lonely Planet mobile city guide apps overlay place‐of‐interest
information on pictures seen through travelers’ cell phone cameras.
Augmented Reality Creates Advertising Opportunities

16. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Is Perception Really Reality?

17. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Artificial Intelligence & Digital Marketing
Programmatic
Buying
Email & SMS
Marketing
Personalized
User
Experiences
Predictive
Analytics
Web Design
AI Powered
Chatbots
Online & Mobile
Advertising
Voice Search
Optimization
Content
Curation
E-Commerce
Content
Generation

18. “I’M SORRY DAVE, I’M AFRAID I CAN’T DO THAT.” Scottsdale
Intellectual Property (primarily ©, at least for now)
Right to Use Input, Output
Authorship, Ownership, Infringement
Confidentiality, Privacy and Data Protection
Use of Data, Use of Output
Disclosure
Cybersecurity
Algorithmic Disgorgement: A recent enforcement mechanism, referred to as algorithmic disgorgement, has been used by the Federal Trade
Commission (FTC) to penalize companies that have illegitimately collected data and used that data to train an algorithm. The FTC has
required the company to either delete the data they collected or delete the algorithm or models the company developed using the data or
both. The threat of algorithmic disgorgement can extend to the output generated from these models and as such, users may be at risk of
losing their work product that was generated using generative AI models that have violated other entitiesʹ rights.
Liability for:
• Infringement
• Plagiarism
• Inaccurate Output
• Slander/Libel
• Defamation
• Reliance
• Bias or Discrimination
International Law: Don’t Make Assumptions
What About Those Pesky Legal Issues?

19. Scottsdale
Dwar Ev ceremoniously soldered the final connection with gold. The eyes of a dozen television cameras watched
him and the subether bore through the universe a dozen pictures of what he was doing.
He straightened and nodded to Dwar Reyn, then moved to a position beside the switch that would complete the
contact when he threw it. The switch that would connect, all at once, all of the monster computing machines of all
the populated planets in the universe--ninety-six billion planets--into the supercircuit that would connect them all
into the one supercalculator, one cybernetics machine that would combine all the knowledge of all the galaxies.
Dwar Reyn spoke briefly to the watching and listening trillions. Then, after a moment's silence, he said, "Now,
Dwar Ev."
Dwar Ev threw the switch. There was a mighty hum, the surge of power from ninety-six billion planets. Lights
flashed and quieted along the miles-long panel. Dwar Ev stepped back and drew a deep breath. "The honor of
asking the first question is yours, Dwar Reyn." "Thank you," said Dwar Reyn. "It shall be a question that no single
cybernetics machine has been able to answer."
He turned to face the machine. "Is there a God?"
The mighty voice answered without hesitation, without the clicking of single relay. "Yes, now there is a God."
Sudden fear flashed on the face of Dwar Ev. He leaped to grab the switch. A bolt of lightning from the cloudless sky
struck him down and fused the switch shut.*
ʺAnswer,ʺ from Angels and Spaceships, by Fredric Brown (Dutton, 1954)
There is now . . .

20. Scottsdale
Joseph I. Rosenbaum | Partner
Rimôn, Law Firm Evolved
O: +1 (646) 513.3225 | M: +1 (646)
522.0083
joseph.rosenbaum@rimonlaw.com
Joseph I. (“Joe”) Rosenbaum