By: Anthony Aceto
The late George Carlin is considered by many to be one of the greatest comedians of all time. Over his fifty-year career, Carlin’s acerbic wit and his expletive–laced social commentary gave him a reputation for boundary-pushing that satirized and exposed much of modern life. It seems fitting that the boundary–pushing sensibilities of Carlin would come into conflict with the boundary–pushing advancements of AI technology.
On January 9, 2024, the “Dudesy Podcast” (Dudesy, LLC) released an hour-long video on YouTube titled “George Carlin: I’m Glad I’m Dead (2024) – Full Special.” The video allegedlyused an AI-generated sound-alike of George Carlin to read out and perform an AI-generated script written in Carlin’s style of humor, delivery, and cadence.
Following the release of the video, former Carlin manager and executor of his estate, Jerold Hamza, filed suit in the CentralDistrict of California. The Carlin estate alleges counts including deprivation of right to publicity and copyright infringement. They argue that the special (which was set to “private” on YouTube shortly after the lawsuit was filed) presents itself as being created by an AI trained on decades worth of Carlin’s material. They argue that training would, by definition, involve making “unauthorized copies” of “Carlin’s original, copyrighted routines” without permission in order “to fabricate a semblance of Carlin’s voice and generate a Carlin stand-up comedy routine.
The estate argues that the consumption of Carlin material to produce this special is fundamentally different than a human impressionist. The complaint states that “The Dudesy Special is an output generated by a technological process that is an unlawful appropriation of Carlin’s identity, which also damages the value of Carlin’s real work and his legacy. “Defendants’ AI-generated ‘George Carlin Special’ is not a creative work,” argues the Plaintiff. “It is a piece of computer-generated click-bait which detracts from the value of Carlin’s comedic works and harms his reputation. It is a casual theft of a great American artist’s work.”
The Dudesy Podcast, in their defense, argues that the work was not produced by an AI-generated script but was written by a human writer on the podcast. However, the degree to which this might affect their liability is rather unclear.
This issue is yet another iteration of the celebrity versus AI face-off that is now springing up across the cultural landscape. Both music and the visual arts have been confronted by the controversy and existential questions which AI entails. Now Comedy will have to ask the same questions concerning the fundamental nature of it as an art form.
The advent of artificial intelligence poses interesting and challenging legal issues because the law is still “catching up” with the technology. While some states are considering or have adopted some restrictions on impersonation by AI, many existing legal concepts, such as right of publicity and copyright infringement, are still applicable to generative AI impersonations. For example, if the use by a broadcaster of Taylor Swift’s AI–generated voice would violate the right of publicity, the use of her AI voice would also violate these same rights. These laws protect the use of an individual’s name, image, likenesses, and other identifying features. This includes the subject’s voice.
The test for infringement of the right of publicity requires no proof of falsity, confusion, or deception but is governed by the“identifiability” test. In the case of an AI Taylor Swift voice, if the voice is identifiable as TSwift, the use may constitute a violation, regardless of whether the broadcaster explicitly identifies the “voice” as that of Taylor Swift. However, if a radio DJ conducted an “obviously over-the-top” interview with AI Taylor Swift that was so clearly humorous, fake, and parodied her, as would be the case of a human impersonator, the broadcaster can defend themselves with the “fair use” exception.
In copyright, just because the bit in which the voice is used is funny does not mean that it necessarily is fair use, as that concept usually requires that the bit be making fun of the otherwise protected work itself, not that the copyrighted material is just used for the sake of comedy. Here, however, copyright infringement will really depend on the algorithmic function of the program that created the “special,” if such an algorithm even exists. It is unclear at this point to what degree the DudesyPodcast used copyrighted George Carlin material to generate the “AI Special.” This information will likely be revealed soon in discovery.
However, the estate likely has a solid case for violation of theright of publicity. Whether the podcast used AI or not, the name, image, and likeness of George Carlin are adopted wholesale in the “AI Special.” Further, a “fair use” defense will be difficult for the Podcast to make. The “AI Special” is not really a form of parody, criticism, or commentary. While it is certainly intended to be “funny,” humor alone is not enough to establish a viable“fair use” defense. Especially when the intent is to reproduce the humor of the original source material. The content at issue here is fundamentally different than Alec Baldwin doing a Trump impression or Tina Fey’s rendition of Sarah Palin. The Podcastisn’t so much parodying Carlin but recreating him visually, aurally, and stylistically. Without any prior licensing from the George Carlin estate, the Dudesy Podcast will have difficulty getting out of this lawsuit unscathed.
Whatever merits the case possesses, it is unlikely that this new “special” will give any of today’s stand-up comedians pause for concern. Their jobs are safe for the moment. It is up for debate whether or not this “AI Special” degrades the storied career of agenerational performer. However, what is certain and what needs to be said is that this new “AI Special” is hellaciously unfunny (I watched so that you don’t have to). While it may sound like George Carlin, those who have enjoyed his material will instantly recognize an inscrutable feeling that there is something eerily out of kilter in this “special.” Comedians can rest assured that the sophistication of AI technology does not yet pose an existential threat to the uniquely human medium of stand-up comedy. While that day may be on the horizon, it is not today.
Student Bio: Anthony Aceto is a 2L at Suffolk University Law School. He is a staff writer on the Journal of High Technology Law. Anthony received a Bachelor of Arts Degree in Philosophy and Economics from Boston College.
Disclaimer: The views expressed in this blog are the views of the author alone and do not represent the views of JHTL or Suffolk University Law School.
