Recently, Artificial Intelligence (AI) has been used to recreate the oral arguments of the landmark Supreme Court case Brown v. Board of Education. As a legal matter, unlike commercial uses of voices without permission or compensation, using a public figure’s name, image, voice or likeness for comment, criticism or other noncommercial use is likely both fair use under copyright law and not a violation of a state right of publicity. However, like many uses of AI, the “Brown Revisited” project is viewed by some as a positive — and by others as an alarming — development.

When the school desegregation case was heard 70 years ago, the Supreme Court did not allow microphones to record the proceedings. Jerry Goldman, a retired law professor and founder of U.S. Supreme Court multimedia archive Oyez, partnered with the Knight Lab at Northwestern University’s Medill School of Journalism, podcast company Spooler, and AI company Respeecher to bring the case to life. Because audio recordings of the oral arguments did not exist, Goldman used a combination of historical recordings, actors and AI to recreate the proceedings. Media samples, including recordings of Thurgood Marshall, Chief Justice Earl Warren, John W. Davis and other key figures, along with recordings of actors who read court transcripts, were used to create the human-voiced, synthetically enhanced work.

Some have praised the AI recreations, stating that listening to the recording “felt as if Thurgood Marshall were speaking a few feet away from me.” Others have criticized the project, warning that the audio is filtered through an actor’s interpretation and may not be authentic. Benjamin G. Davis, Emeritus Professor of Law at the University of Toledo College of Law, argued that the recreation may have failed to accurately “match the emphases of those original speakers.” Davis believes AI may make it difficult to distinguish between interpretation and reality, making it easier for individuals to accept the audio deepfake as an authentic representation of the actual events. Thurgood Marshall Jr. called some clips “strikingly good in terms of voice quality and intonation,” but describing others as “meh.” Jeffrey Earl Warren, Chief Justice Earl Warren’s grandson, commented that his grandfather’s voice was “gravelly” and “much lower” than the AI recreation.

Though AI voice creation is still in its infancy, this technology may offer a new pathway to history. As it becomes increasingly difficult, even with transparency and appropriate disclaimers, to distinguish between what is real and what is AI-generated, the challenge will be whether consumers recognize and appreciate the difference.