IP and the Metaverse: Inconsistent Regulation on Publicity Rights Will Likely Fuel New IP Challenges in the Metaverse
The metaverse will provide creators with new opportunities to express their creativity online. Not only will they be able to create and share text, photos, and videos online, as they can today, but they will also be able to create and share virtual worlds, objects, and avatars. Because of this, protecting the intellectual property (IP) rights of people’s identities in the metaverse will likely be a contentious issue. Unfortunately, publicity rights—the rights addressing the commercial exploitation of a person’s name, image, or persona—vary widely within the United States, and the legal concept is sparsely recognized in international jurisdictions.
Consider the following hypothetical situation befalls Jimi Hendrix’s estate: a New York company combines a Jimi Hendrix avatar with the audio from the “Jimi Plays Monterey” album, set in a virtual version of the Monterey County Fair Grounds in California, and only makes it available for purchase to viewers in South Korea in the metaverse. What recourse would the Hendrix estate have and where should it bring suit?
While most U.S. states and a handful of other countries recognize some form of publicity rights, the scope of these rights varies by jurisdiction. No federal statute recognizes publicity rights, although certain forms of protection exist within federal competition and trademark laws. It is highly unlikely a court in Washington (the location of Hendrix’s estate) or California (where the fairgrounds exist) would have jurisdiction, and since Jimi Hendrix died in London in 1970, New York’s 2021 postmortem publicity right that “applies to deceased individuals who die on or after the effective date of the law and who are domiciled in New York State at the time of death,” would not apply. Moreover, South Korea does not observe publicity rights. Thus, enforcing publicity rights in a global, virtual environment like the metaverse could leave rightsholders with no recourse whatsoever.
Such a situation is not merely hypothetical, either. A user called Ghostwriter 977 recently wrote, produced, and uploaded a song called “Heart on My Sleeve”that appeared to feature Drake and The Weeknd to several major platforms, including Spotify, Apple Music, Amazon, YouTube, and TikTok. However, the user generated the vocals using artificial intelligence. Although streaming services eventually took down the song, better laws on publicity rights would give creators clearer enforceable rights.
To meet this global challenge head-on, the World Intellectual Property Organization (WIPO) should create an intergovernmental framework for protecting and enforcing publicity rights in the metaverse. U.S. delegates should propose the concept and lead discussions at WIPO, and U.S. trade representatives should engage with their international counterparts on the issue. In addition, Congress should provide rightsholders with a federal cause of action for publicity rights to ensure some basic jurisdictional consistency within the United States.
A key feature of the metaverse may be the ability to express one’s identity online, especially through avatars. As a result, the metaverse could make infringement of publicity rights more likely, just as the ability to share content on Web 2.0 platforms made copyright infringement more likely. Today’s legal landscape for publicity rights is fractured, but policymakers have the opportunity to shape the framework for the metaverse in a way that appropriately balances users’ and rightsholders’ interests.