The fight between creators and big tech has mostly been focused on the alleged copyright infringement of using creative works in AI training data. However, trademark law might be the next battleground as creators look for additional ways to protect their work from AI-related misuse. Actor Matthew McConaughey recently received U.S. Registration No. 8,070,191 for his famous line, “Alright, Alright, Alright” delivered in the 1993 movie Dazed and Confused. The registration is for a sensory mark that protects the distinct intonation he made famous in the film.
Trademarks protect a brand’s identity. Unlike copyright infringement, trademark infringement generally turns on whether a mark is used in commerce in a way that is likely to cause consumer confusion. That means using a trademarked phrase as an AI input, or having it appear in an AI output, is not automatically trademark infringement. Even so, trademarks can be a useful tool for artists looking to protect their identity from deepfakes and other AI-generated content that improperly imitates them. In that sense, trademark law may offer creators another path to push back against AI developers or users who try to profit from an artist’s identity without permission.