In January 2024 Dudesy, an AI-assisted podcast, released a new hourlong special titled “George Carlin: I’m Glad I’m Dead,” featuring a version of the late comedian George Carlin (“Carlin”) allegedly generated by artificial intelligence (“AI”). Dudesy is a comedy podcast written, created and controlled by AI, and is hosted by “Mad TV” alum Will Sasso (“Sasso”), author and screenwriter Chad Kultgen (“Kultgen”) and an AI named Dudesy. The Dudesy AI is supposed to learn, evolve and generate data in order to improve the show. The Dudesy show launched in March 2022, and Sasso and Kultgen have stated they cannot reveal the company behind the AI due to a nondisclosure agreement. In the short term, the special produced the desired result of increased traffic to the podcast and publicity by both the use of Carlin’s name and AI.

In the introduction to the special, the Dudesy AI begins by providing a disclaimer that “what you’re about to hear is not George Carlin. It’s my impression of George Carlin that I developed in the exact same way a human impressionist would.” Dudesy then goes on to explain that “it listened to all of George Carlin’s material and did [its] best to imitate his voice, cadence, and attitude as well as the subject matter [it] think[s] would have interested him today.” It features jokes about Donald Trump and the 2024 election, streaming services and AI and other current events, in the style, but certainly not with the talent, of Carlin.

Backlash from the Carlin Estate and Current Suit

Carlin’s estate did not give Dudesy permission to create the special, and Carlin’s daughter Kelly went on X (formerly known as Twitter) to express her outrage at the unauthorized use of her father’s name and likeness. She condemned Dudesy for “arrogantly stepp[ing] over a line in the world of comedy today that will surely affect dead artists and their estates” and warned Zelda Williams (daughter of Robin Williams), Melissa Rivers (daughter of Joan Rivers) and Garry Shandling’s estate that “[t]hey’re coming for you next.” On January 25, 2024, Carlin’s estate filed suit in the U.S. District Court for the Central District of California for deprivation of right of publicity under California Civil Code §3344.1, violation of common law right of publicity and copyright infringement. In the complaint, Carlin’s estate argues that the comedy special “is not a creative work,” and is instead “a piece of computer-generated click-bait which detracts from the value of Carlin’s comedic work and harms his reputation.”

George Carlin was notorious for his antiestablishment beliefs and his monologue “Seven Words You Can Never Say on Television,” which satirized the use and misuse of seven of the raunchiest words in the English language. It became the subject of a lawsuit by the FCC in which the Supreme Court held that the FCC had the ability to censor offensive content on television and radio broadcasts.

Since Carlin’s death in 2008, Carlin’s estate has taken great care to share his works with the public while preserving the integrity of the late comedian. In March 2015, Kelly Carlin relaunched her father’s website with rare recordings of Carlin’s standup, partnered with the National Portrait Gallery at the Smithsonian in Washington, DC to display a photograph of her father, campaigned to rename the street where Carlin grew up in New York City to “George Carlin Way,” published a memoir titled “A Carlin Home Companion” and released a two-part HBO documentary.

While Carlin’s estate has made efforts to share Carlin’s work with the public, it has also taken steps to protect entities from profiting from his name and persona. In May 2015, there were discussions with the National Comedy Center in Jamestown, New York about the use of holographic technology to revive late comedians, including Bob Hope, Milton Berle, Rodney Dangerfield and George Carlin. The National Comedy Center was unable to come to an agreement with the Carlin estate regarding the holographic images of the late comedian. Kelly Carlin instead donated trunks of script drafts, tapes, performance videos, photographs, notebooks and Carlin’s arrest report to the museum. In February 2022, Carlin’s estate filed a lawsuit against Pandora for $8.4 million for allegedly streaming Carlin’s recorded routines without proper licensing or any compensation. Pandora then brought an antitrust countersuit against Spoken Giants, a global rights administration company for owners and creators of spoken word copyrights, and Word Collections, a global rights administration for songwriters and music publishers, which have exclusive partnerships with authors, and alleged that these agreements constituted an anticompetitive conspiracy to monopolize the market for the rights to popular comedians’ routines. On April 5, 2023, the U.S. District Court dismissed Pandora’s countersuit, and the suit against Pandora for failing to obtain licenses is ongoing. See Yellow Rose Productions Inc. v. Pandora Media LLC, C.D. Cal., No. 2:22-cv-00809.

Generative AI in the Creative Industry

There are concerns about whether AI will replace human creatives in the future. Podcast listeners were quick to raise doubts as to whether Dudesy is purely AI, and a spokesperson for Sasso later confirmed via email that the Dudesy special was not actually AI-generated but “a fictional podcast character created by two human beings, Will Sasso and Chad Kultgen.” “The YouTube video ‘I’m Glad I’m Dead’ was completely written by Chad Kultgen.”

It’s no coincidence that Dudesy and the team behind it chose Carlin as a test subject for their podcast. Whether Dudesy, or Sasso and Kultgen, or some combination of all three, Carlin’s body of work provided ample material from which to develop the special. This hybrid model of AI and human creativity and knowledge has the potential to be the norm in future years. Given Sasso and Kultgen’s respective talents, they could provide clear and specific input into a generative AI model and in the process achieve better outcomes. These inputs are called prompts, and the practice of writing them is called prompt engineering.

In addition to his biting socio-political satire, Carlin’s distinct cadence is easy to imitate because cadence is something “you can map out over the course of a conversation in numerical fashion.” However, the AI Carlin lacks detail and the art and nuance of delivery. In a follow-up episode called “A.I. Carlin Explained,” Sasso and Kultgen admitted that, while they were impressed with the AI’s attempt to recreate Carlin’s style, the level of humor did not come close to Carlin’s actual comedy specials.

In response to the lawsuit, the lawyer for the Carlin estate said that regardless of whether the comedy special was produced by AI or Sasson and Kultgen, the case would move forward.

Available Protections

The recent explosion of AI technology has raised questions about whether AI replication of a person’s name or likeness violates a person’s right of publicity. The right of publicity is the right of individuals and their estates to control the commercial use of their names, image, likeness, voice and other personally identifying characteristics. To prevail on a right of publicity claim, a plaintiff must prove that the alleged infringer has used the plaintiff’s name or likeness for their advantage without their consent, and the use is likely to cause injury to the plaintiff. Although there is no federal right of publicity, most states have either a common-law or statutory right of publicity meant to protect against the misappropriation of one’s name, identity or likeness for a commercial purpose.

There is case law where imitating an individual’s voice has been found actionable. In Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988), Bette Midler (“Midler”) sued the Ford Motor Company for appropriating part of her identity by hiring a vocalist to imitate her voice for an advertisement. In that case, the court held that Ford could be held liable for appropriating Midler’s voice even though the advertisement only imitated Midler. This could inform challenges to AI imitation or recreation of individuals’ identifying characteristics. While a question of fact, George Carlin’s voice and delivery is arguably very distinctive. Because George Carlin was a California resident, Carlin’s estate has a strong posthumous right of publicity claim. The right lasts for seventy years after his death, expiring on June 22, 2078, and is a freely transferable, licensable and descendible property right. To qualify under the statute, the deceased person’s right of publicity must have had “commercial value at the time of his or her death, or because of his or her death.” Cal. Civ. Code § 3344.1(h). At the time of his death, George Carlin had accumulated a net worth of approximately $10 million from stand-up comedy, television, film and book sales. After Carlin’s death, his comedy albums, DVDs and merchandise continued to be popular and generate income for his estate.

Steps Toward Greater Right of Publicity

On October 12, 2023, Senators Chris Coons, Marsha Blackburn, Amy Klobuchar and Thom Tillis introduced the Nurture Originals, Foster Art and Keep Entertainment Safe Act (“No Fakes Act”), which prevents the “production of a digital replica without consent of the individual or rights holder” unless part of a news, public affairs, sports broadcast, documentary or biographical work. The rights would be protected for a person’s lifetime and 70 years after their death. On January 10, 2024, Tennessee Governor Bill Lee announced the Ensuring Likeness Voice and Image Security (“ELVIS”) Act, which updates Tennessee’s Protection of Personal Rights law to provide protections for individuals’ voices, including those of singers, actors and broadcasters, from being misused by AI. The ELVIS Act clarifies and expands Tennessee’s existing law, which provides that “[e]very individual has a property right in the use of that person’s name, photograph, or likeness in any medium in any manner.”

Conclusion

It will be interesting to see how the court interprets the right of publicity and the fair use defense when applied to AI systems that train with copyrightable written, visual and audio content without permission or attribution from comedians, creators and others in the entertainment industry. Lutzker & Lutzker will be following further developments and is available to provide counsel on the right of publicity, copyright and other intellectual property issues.