Can I Use 1920s Gangster Likenesses in an AI Movie?

Question from Dr Rock Terry, Can I Use 1920s Gangster Likenesses in an AI Movie?

Answer from AI:

Using the likenesses of 1920s gangsters in an AI-created movie raises several legal considerations, primarily related to intellectual property, publicity rights, and the First Amendment. Here’s a breakdown of the key issues and how they might apply:

1. Copyright and Public Domain

• Works created in the 1920s, such as films, photographs, or literary works, are generally in the public domain in the U.S. if their copyright has expired. Under U.S. copyright law, works published before 1928 are no longer protected by copyright and can be freely used without permission.
• However, specific depictions of gangsters (e.g., in films or photographs) may still be copyrighted if they were created after 1928 or if their copyright was renewed. Always verify the copyright status of specific works you plan to use.
• If you’re using AI to generate original content based on public domain works, the resulting movie would generally belong to you as the creator.

2. Right of Publicity

• The right of publicity protects a person’s name, likeness, and image from being used for commercial purposes without consent. This right varies by state, but it generally applies even after the person’s death, often for a certain number of years (e.g., 50 to 100 years).
• If you’re using the likeness of a well-known gangster like Al Capone or Bugsy Siegel, you may need permission from their estate or heirs, especially if the use is commercial (e.g., selling the movie or using it for advertising).
• Some states, like California, have broad right of publicity laws that apply posthumously, while others may not recognize it at all. Consult the laws of the state where the gangster lived or died to determine if permission is needed.

3. First Amendment and Transformative Use

• The First Amendment may protect your use of a gangster’s likeness if it’s transformative, meaning you’re adding significant creative value or commentary to the original material. For example, using a gangster’s likeness in a historical drama or parody might be protected.
• Courts often balance the First Amendment against the right of publicity. If your use is deemed primarily commercial rather than artistic or educational, it may not receive First Amendment protection.

4. AI-Generated Content

• If the movie is created using AI, you should consider who owns the rights to the AI-generated content. Under U.S. copyright law, human authorship is required for protection, so AI-generated works are generally not copyrightable. However, you may still own the movie as a derivative work if you provided significant creative input.
• If the AI uses copyrighted material (e.g., images or text) to generate the movie, ensure you have the rights to use that material or that it’s in the public domain.

5. When to Seek Legal Advice

• If you’re unsure whether a specific gangster’s likeness is protected by the right of publicity or if you’re using copyrighted material, consult a legal professional.
• If you plan to commercialize the movie, it’s especially important to verify your rights and obligations to avoid potential lawsuits.

6. Practical Steps

• Research the gangsters you plan to depict: Determine whether their likenesses are in the public domain or if their estates enforce publicity rights.
• Use public domain materials: Stick to works from the 1920s that are no longer under copyright to minimize legal risks.
• Consider transformative use: Ensure your movie adds creative value or commentary to strengthen your case for First Amendment protection.

Final Thoughts

Using likenesses of 1920s gangsters in an AI-created movie is possible, but it requires careful consideration of intellectual property and publicity rights. If you’re unsure about any aspect, consulting an intellectual property attorney can help you navigate these complex issues and ensure compliance with the law. For more information on U.S. copyright law, visit the U.S. Copyright Office.