AI Selfies: what rights are users giving up?

Artificial intelligence, or “AI,” has recently taken the art world by storm. The concept is simple but novel. The user provides an AI software program with a text, image, or other material as a prompt, and then watches as the AI creates original works. Recently, a new application of this technology has been trending all over social media: The “AI Selfie.”

At a basic level, the AI Selfie functions the same way as standard AI art, but the prompt is the user’s provided selfie photograph as opposed to text or another image. However, by using these applications or sharing the created art, users are often giving the app creator rights to the user’s name, image, and likeness in ways the user might not be comfortable with. This article goes over those rights, what to watch for, and how to avoid improper use.

What rights are being discussed here?

Every individual person automatically has something called the legal “right of publicity,” which means they have the right to control how their identity can be used commercially. To describe with more clarity what that right looks like in practice, “publicity” is often broken down into “name,” “image,” and “likeness” rights.

While these rights begin with the individual, they can be transferred to third parties through written agreements. Casual observers often see those kinds of agreements played out in the form of celebrity endorsement deals for advertising products. However, not every agreement is so carefully considered. When individual people use software applications, that application often requires that people agree to the associated “terms of service,” which can confer to the software owner some of the individual’s rights.

In short, users should be aware that by clicking “I Agree” and choosing to use one of these AI Selfie programs, they may be giving up some rights.

How do I know what rights I’m giving up?

In order for a company to obtain a user’s rights, the company must publish a “term of use” or “terms of service” that lays out how that data can be collected and used. Let’s look at an example.

This question is probably best answered with an example. One of the most popular AI Selfie applications is Lensa, whose terms of use can be found here. When the individual uses the Lensa application, they grant Lensa a perpetual, irrevocable, non-exclusive, royalty-free, worldwide, transferable, sub-licensable (that’s a lot of modifiers!) license to anything the user uploads to the application and anything the application creates based on that material. The words “perpetual” and “irrevocable” mean the license never expires on its own, the words “royalty-free” mean the user will not be paid for use of the material, and the words “transferable” and “sub-licensable” mean that Lensa may grant additional third parties the right to use the individual’s content.

We do note that Lensa limits this license “for the purposes operating or improving Lensa.” In practice, however, that grant may be construed fairly broadly. Content shared on social media using Lensa is also covered under a separate license, where Lensa is limited to using the content for any “marketing purpose.”

As a comparison, PortraitAI (whose Terms can be found here) similarly limits its license “solely to provide you with the Services.” However, it does reserve for FaceFun the right to use any images the user provides to them in conjunction with ads and promotions on any of their websites or applications.

Can I terminate this license?

Thankfully, Terms of Service typically also lay out how a user can terminate the app creator’s rights to use the user’s information. In Lensa’s case, deleting the user’s content from the application or terminating the user’s account will also terminate Lensa’s license. Other applications may require the individual to contact the company directly via email or traditional mail, call a specific phone number, or submit a form requesting the deletion.

PortraitAI also allows the user to terminate the license and delete all content they have provided, but that provision actually appears in its Privacy Policy, not its Terms of Use, so users may sometimes have to dig a little deeper to find out how they can protect their information.

It’s worth noting, at the finale here, that terms of service may also be subject to change by the application. However, Federal and state laws often have consumer protection laws that require businesses to notify customers when this happens, so keep a lookout and make sure to remain protected.

Connor Richards

Connor is an attorney at Odin Law and Media building his practice focused on the video game, entertainment, and esports industries. Prior to joining Odin, Connor worked at Ernst & Young, assisting multinational corporations with a variety of tax matters. Connor also actively participates in the Esports Bar Association and as a guest on the occasional industry podcast. He can be reached at connor at odin law dot com.

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