As I was preparing to teach trademark class today, I was struck by the Wall Street Journal‘s provocatively titled article, “Matthew McConaughey Trademarks Himself to Fight AI Misuse.”
The title of the article was only more shocking than one I read about the proposed law in Denmark that would allow people to “copyright themselves” as a weapon to combat unauthorized AI use. (As best as I can tell, the proposed Danish law does not allow people to copyright themselves, but it would establish some legal protection for people’s likenesses and then codify the amendment within existing copyright law.)
Here’s what the WSJ says McConaughey has federally registered for trademarks:
Over the past several months, the “Interstellar” and “Magic Mike” star has had eight trademark applications approved by the U.S. Patent and Trademark Office featuring him staring, smiling and talking. His attorneys said the trademarks are meant to stop AI apps or users from simulating McConaughey’s voice or likeness without permission—an increasingly common concern of performers.
WSJ article
The trademarks include a seven-second clip of the Oscar-winner standing on a porch, a three-second clip of him sitting in front of a Christmas tree, and audio of him saying “Alright, alright, alright,” his famous line from the 1993 movie “Dazed and Confused,” according to the approved applications.
Federally Registered Marks
Let’s take a closer look at what’s been registered. I’m still searching for 3 more registrations (the article mentions 8 total). But here are the ones I found so far:
1.7995851: [Motion mark] The mark is a motion mark. The mark consists of the actor Matthew McConaughey with beige face and hands, brown hair and facial hair, white teeth, and black eyelashes, wearing a white button down shirt, silver necklace, silver watch, and silver rings. He is standing outdoors on a porch with brown wooden slats and a silver metal fence, with green trees and bushes, tan sand, white clouds, blue sea, and blue sky in the background. The motion consists of the actor standing and facing forward with his arms raised and palms open. Next, his arms open further wider. Then he glances to the side and places one hand on his hip and lowers the other hand out of the frame, with his body positioned at an angle, and turns his face forward. The duration of the motion is approximately 7 seconds.
2. 7931810: [Motion mark] The mark is a motion mark. The mark consists of the actor Matthew McConaughey with beige face and hands, brown hair and facial hair, white teeth, and black eyelashes, wearing a white button down shirt, silver necklace, silver watch, and silver rings. He is standing outdoors on a porch with brown wooden slats and a silver metal fence, with green trees and bushes, tan sand, white clouds, blue sea, and blue sky in the background. The motion consists of the actor standing and facing forward with his arms raised and palms open. Next, his arms open further wider. Then he glances to the side and places one hand on his hip and lowers the other hand out of the frame, with his body positioned at an angle, and turns his face forward. The duration of the motion is approximately 7 seconds.
3. 7893248 The mark is a motion mark. The mark consists of the actor Matthew McConaughey with beige face, brown hair and facial hair, blue and white eyes, a black mouth, white teeth, and pink lips, wearing white and sliver glasses and a light blue button down shirt. He is sitting in his living room in front of a white, off-white, and black stone fireplace with gray stones in front of it, with green and white hanging lights, a green Christmas tree with white lights and red decorations and white tree skirt, white cabinets with silver handles, white shelves with a black tv screen and black and brown items on the shelves, a gray pillow on the floor, a side table in black with a white book on top, brown wooden floor, and brown sofa. The motion consists of the actor facing forward with his arms at his sides and head slightly tilted, with his mouth moving. Next, his head slightly tilts to face directly forward, and he smiles. The duration of the motion is approximately 3 seconds.
4. 7995959: The mark is a motion mark. The mark consists of the actor Matthew McConaughey with beige face, brown hair and facial hair, blue and white eyes, a black mouth, white teeth, and pink lips, wearing white and sliver glasses and a light blue button down shirt. He is sitting in his living room in front of a white, off-white, and black stone fireplace with gray stones in front of it, with green and white hanging lights, a green Christmas tree with white lights and red decorations and white tree skirt, white cabinets with silver handles, white shelves with a black tv screen and black and brown items on the shelves, a gray pillow on the floor, a side table in black with a white book on top, brown wooden floor, and brown sofa. The motion consists of the actor facing forward with his arms at his sides and head slightly tilted, with his mouth moving. Next, his head slightly tilts to face directly forward, and he smiles. The duration of the motion is approximately 3 seconds.
5. 5373751: Alright Alright Alright
So many questions …
The putative motion marks raise so many questions. Do these motion marks function as marks? Do they have secondary meaning? And assuming they do (they did get approved for registrations!), do they add greater protection than the copyright that already covers the audiovisual work?
For the latter copyright question, one possibility is that trademark law does not recognize a general fair use exception, whereas copyright law does. But trademark law still requires proof of a likelihood of confusion as to sponsorship or endorsement (while copyright law does not).
Got to go teach trademarks class now, but I will ponder these questions more.