An article (sorry for the paywall) appeared recently in the Wall Street Journal under the title “Matthew McConaughey Trademarks Himself to Fight AI Misuse–
Actor plans to use trademarks of himself saying ‘Alright, alright, alright’ and staring at a camera to combat AI fakes in court.”
The WSJ article said, “McConaughey’s lawyers believe that the threat of a lawsuit in federal courts would help deter misuse more broadly, including for AI video that isn’t explicitly selling anything.” It also quoted the lawyer as saying: “I don’t know what a court will say in the end. But we have to at least test this.”
I think the more accurate statement is: Mr. McConaughey’s lawyers are generating fees (or possibly appeasing a demanding client with speculative legal work) by doing trademark filings on something that is not properly the basis for a trademark. But I guess a client who is a wealthy, successful actor can easily fund speculative trademark registrations, so…everybody wins. Except maybe the PTO. Perhaps I need more clients like that.
To me, trademark law covering a man saying “alright” sounds much more speculative than publicity rights–which are already designed to protect a personal likeness and image. On the plaintiff’s side, the problem is that trademarks are intended to cover the source or origin of goods and services, and a guy–real or fake–saying something in a video clip is neither of those. On the defendant’s side, if the AI truly “isn’t selling anything” then a trademark claim is weak. Trademark infringement is a commercial tort. Publicity rights, in contrast, are designed to redress claims about personal, rather than commercial, reputation. Both are also vulnerable to first amendment limitations. Mr. McConaughey is, after all, a public figure who has voluntarily placed himself in public view.
The better legal policy would be to advocate for consistent publicity rights via federal law, instead of the crazy-quilt of state law that currently covers it in the US.
I suspect also that one element of the fitting-a-square-publicity-rights-peg-into-a-round-trademark-hole strategy is to leverage international treaties about trademark that might not extend to publicity rights.
Looking for the Registration
I took a look on the USPTO site, because I was curious to see how to claimed goods and services would be described, and found this:
All of the above were filed for products, but have been abandoned, though it’s not clear whether the abandonment may have been “suggested” by the actor’s lawyers.
Now, there are many registrations at the PTO by J.K. Living Brands, which is apparently McConaughey’s trademark holding company. But I could not find any application of the kind described in the WSJ article.
A couple of the live registrations are for “entertainment services” in category IC 041.
The goods listed for this last one are “Entertainment services, namely, personal appearances by an actor and celebrity; entertainment services, namely, acting services in the nature of live performances and personal appearances by an actor and celebrity; entertainment services, namely, acting services in the nature of live visual and audio performances by a professional entertainer; entertainment services, namely, film and television show production service.”
But a meme of someone saying “Alright” would not be in this goods description.
So, is this just another example of the press drumming up a headline without any particular regard for how IP law works, or a brilliant new legal tactic that IP lawyers need to learn? That’s unclear.
I will update if I find the registration or more explanations of why this tactic should work.
