[Federal Register Volume 89, Number 126 (Monday, July 1, 2024)]
[Notices]
[Pages 54442-54444]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14455]


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DEPARTMENT OF COMMERCE

Patent and Trademark Office

[Docket No. PTO-C-2024-0024]


Public Roundtable on Protections for Name, Image, Likeness, Other 
Indicia of Identity, and Reputation

AGENCY: United States Patent and Trademark Office, Department of 
Commerce.

ACTION: Notice of public roundtable.

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SUMMARY: The United States Patent and Trademark Office (USPTO) will 
hold a roundtable to seek public input regarding: whether existing laws 
protecting an individual's reputation and existing laws prohibiting 
unauthorized use of an individual's name, image, voice, likeness, or 
other indicia of identity (collectively referred to within this Notice 
as ``NIL'') are sufficient given the development and proliferation of 
artificial intelligence (AI) technology. The USPTO will seek this input 
to assist in its ongoing work to shape intellectual property (IP) 
policy, including NIL policy, and to assist in its work related to 
President Biden's Executive Order on the Safe, Secure, and Trustworthy 
Development and Use of Artificial Intelligence.

DATES: The USPTO will hold a public roundtable, titled Protecting NIL, 
Persona, and Reputation in the Age of Artificial Intelligence, on 
August 5, 2024. The roundtable will consist of an in-person session and 
a separate virtual session. Individuals who wish to participate as a 
speaker at either session of the roundtable must submit a request to 
the email address below (at the ADDRESSES section of this Notice), and 
such requests must be received by 11:59 p.m. Eastern Time on July 31, 
2024.

ADDRESSES: The in-person session of the roundtable will be held at the 
USPTO's headquarters, 600 Dulany Street, Alexandria, VA 22314. The 
virtual session of the roundtable will be conducted using the Webex 
videoconferencing platform. Requests to participate as a speaker at 
either session of this roundtable must be submitted via email to 
[email protected] and must be received by the date listed above 
(at the DATES section of this Notice).
    Individuals submitting a request to participate must include in 
their request: their name, professional affiliation, contact 
information, a clear indication of the roundtable session in which they 
seek to participate (individuals may participate in either the in-
person or virtual session, but not both), and a short--no longer than 
one page--summary of what they intend to address at the roundtable. 
Requests to participate as a speaker at the roundtable made in any 
other format will not be considered. If an email submission of a 
request to participate as a speaker is not feasible, please contact the 
USPTO using the contact information below for special instructions.
    Members of the public interested in viewing the livestream of the 
roundtable must register using this link: https://www.uspto.gov/about-us/events/public-roundtable-ai-and-protections-for-use-of-individuals-name-image-or-likeness.

FOR FURTHER INFORMATION CONTACT: Jeffrey Martin, Trademark Attorney-
Advisor, USPTO, [email protected], 571-272-9300.

SUPPLEMENTARY INFORMATION:

I. Background

    To advance its mission, the USPTO monitors and studies emerging 
technologies, including AI, evaluates whether current IP policies and 
protocols continue to encourage the development of new creations and 
technologies without unnecessarily locking up innovation or otherwise

[[Page 54443]]

impinging on the rights of others, and analyzes how emerging 
technologies impact IP rights. The USPTO engages with stakeholders, 
collaborates with other Federal agencies, and solicits views from the 
public to conduct this work. As appropriate, the USPTO develops new 
protocols, guidance, and policies, as well as policy recommendations 
for the Executive and Legislative Branches of the United States 
government, that incorporate input received during this process.
    In June 2022, the USPTO established the Artificial Intelligence and 
Emerging Technology (AI/ET) Partnership to further elevate its 
engagement with stakeholders, government agencies, and the public on 
these issues. For more information on the AI/ET Partnership, visit 
https://www.uspto.gov/artificial-intelligence. The AI/ET Partnership 
has conducted numerous listening sessions on AI and IP issues, 
including a symposium in Los Angeles, California in March 2024, on AI's 
implications for patent, copyright, and NIL laws and policies.
    The USPTO, through the Department of Commerce, is also the primary 
advisor to the President on IP policy matters. On October 30, 2023, 
President Biden issued the Executive Order on the Safe, Secure, and 
Trustworthy Development and Use of Artificial Intelligence, which is 
available at https://www.whitehouse.gov/briefing-room/presidential-actions/2023/10/30/executive-order-on-the-safe-secure-and-trustworthy-development-and-use-of-artificial-intelligence/. This Executive Order, 
in part, charges the USPTO with providing guidance to stakeholders and 
recommendations to the President regarding AI's impact on IP rights.
    AI technology enables new and efficient ways to create digital 
media, including images, audio, and video. AI can be used to generate 
digital media that incorporates individuals' NIL or impacts 
individuals' reputations, with or without appropriate authorization. 
The unauthorized use of AI-generated NIL content can implicate Federal 
trademark and copyright laws, as well as state NIL laws.
    Many state legislatures and courts have either enacted laws or 
established judicial precedents that protect individuals' NIL or 
reputations. In addition, some Federal statutes address certain misuses 
of NIL or reputation. For example, section 43(a) of the Lanham Act (15 
U.S.C. 1125(a)) contains a Federal cause of action that individuals can 
use to address unauthorized uses of their NIL in certain commercial 
circumstances.

II. Roundtable

    In support of its ongoing work to shape IP policy and evaluate 
emerging technologies' implications for IP rights, the USPTO will hold 
a roundtable to solicit input from the public on whether existing legal 
protections for individuals' NIL and reputations are sufficient, how 
these legal protections intersect with other IP laws, and how AI 
technology impacts existing legal protections for NIL and reputation. 
The roundtable will consist of an in-person session and a separate 
virtual session.
    Members of the public interested in participating as a speaker at 
either session of the roundtable must submit such a request to 
[email protected] and provide their name, professional 
affiliation, contact information, a clear indication of the roundtable 
session in which they seek to participate (individuals may participate 
in either the in-person or virtual session, but not both), and a 
short--no longer than one page--summary of what they intend to address 
at the roundtable. Such requests must be submitted by the dates listed 
above (at the DATES section of this Notice). The USPTO will make every 
effort to accommodate requests to speak at the roundtable, subject to 
time limitations.
    The roundtable will be livestreamed. The USPTO will post additional 
information about the roundtable, including a tentative agenda and 
instructions for members of the public to register to view the 
livestream, at https://www.uspto.gov/about-us/events/public-roundtable-ai-and-protections-for-use-of-individuals-name-image-or-likeness.
    The USPTO will also record and transcribe the roundtable and will 
make available copies of the recording and transcript on the USPTO 
website at https://www.uspto.gov/about-us/events/public-roundtable-ai-and-protections-for-use-of-individuals-name-image-or-likeness.
    The USPTO welcomes remarks from roundtable speakers on any issues 
relevant to the subject matter of this roundtable and is particularly 
interested in the following questions.
    1. How does the use of unauthorized NIL content harm individuals? 
Does AI technology exacerbate the creation and use of unauthorized NIL 
content and harm to individuals? If so, how?
    2. How can AI be used as a legitimate and constructive tool in 
circumstances where individuals grant permission to a third party to 
use their NIL?
    3. Do technological mechanisms or protocols currently exist to 
identify AI-generated NIL content, to prevent or deter unauthorized AI-
generated NIL content, or to remove unauthorized AI-generated NIL 
content after it has been released? What other types of mechanisms or 
protocols exist, or should exist, to identify AI-generated NIL content 
or address unauthorized NIL content?
    4. Currently, NIL is primarily protected via state law. In 
addition, some Federal statutes also address certain misuses of NIL. 
For example, the Lanham Act includes a provision--15 U.S.C. 1125(a)--
that can be used to bring a Federal cause of action in certain 
circumstances involving NIL misuse. Are current legal protections for 
NIL rights sufficient? Why or why not?
    5. There have been calls for a new Federal law to address 
unauthorized use of NIL content, including content generated by AI. 
Should Congress create a new Federal law to protect NIL? If so:
    (a) Should current state NIL laws, such as state right of publicity 
laws, be preempted if a new Federal NIL law is enacted?
    (b) What key elements should be incorporated in a new Federal NIL 
law?
    (c) Should any new Federal NIL law protect against all unauthorized 
replicas of an individual's NIL or focus on unauthorized AI-generated 
replicas?
    (d) Some state laws addressing NIL protect only well-known 
individuals. Likewise, many Federal circuit courts require a showing, 
among other elements, that a plaintiff is famous or recognizable by the 
public in order to succeed on a claim under 15 U.S.C. 1125(a). Should 
this requirement of fame or recognizability be included in a new 
Federal law protecting NIL rights? Why or why not?
    (e) Should a new Federal law prohibit non-commercial uses of 
unauthorized NIL content, such as political deep fakes and revenge 
pornography?
    (f) What types of enforcement mechanisms should be included in any 
new Federal NIL law?
    (g) What elements should be included in a new Federal NIL law to 
help ensure it does not become obsolete due to rapid changes in AI 
technology?
    (h) Section 230 of the Communications Decency Act states: ``No 
provider or user of an interactive computer service shall be treated as 
the publisher or speaker of any information provided by another 
information content provider.'' Section 230 also expressly provides 
that ``[n]othing in this section shall be construed to limit or expand 
any law pertaining to intellectual property.'' Should any new Federal 
NIL law be considered an ``intellectual property law'' for purposes

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of Section 230 of the Communications Decency Act?
    (i) How should Congress address First Amendment considerations in 
any new Federal NIL law?
    (j) Should any new Federal NIL law be incorporated into the Lanham 
Act?
    6. What limits, if any, should be placed on the voluntary transfer 
of rights concerning NIL to a third party? For example, should there be 
limits on the duration of such transfers?
    7. Questions 1-6 above relate to individuals' NIL. How should these 
questions be answered in the context of individuals' and creators' 
reputations?

Katherine K. Vidal,
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office.
[FR Doc. 2024-14455 Filed 6-28-24; 8:45 am]
BILLING CODE 3510-16-P