Taylor Swift clearly has credible causes of action against Donald Trump for his false and misleading social media posts. Donald Trump posted to his own Truth Social platform several AI-generated images which falsely suggested that Taylor Swift had endorsed him for president. The post contained several photographs showing women in t-shirts with the “Swifties for Trump” slogan printed on the front. Some of these photographs clearly appeared to have been generated by AI, including several originally posted by a satire website. However, the most prominent image showed Taylor Swift herself, dressed as Uncle Sam in the style of a World War II-era recruiting poster, bearing a clear message: “Taylor wants you to vote for Donald Trump.” At the top of the post, Trump himself responded to the apparent endorsement: “I accept!”
These photographs sparked understandable outrage among the legions of fans
of the superstar who has long been an outspoken critic of the ex-president.
Though she has not yet endorsed a candidate in 2024, Swift supported Joe Biden
and running mate Kamala Harris in 2020, and Swift blasted Trump for “stoking
the fires of white supremacy and racism” and urged her fans to vote
him out of office
Trump's social media posts could give rise to numerous causes of action by Swift. On its face, Trump’s fake endorsement post most obviously violates Swift’s right of publicity, the legal power to control how your name, image and likeness is used by others. While the explosive growth of AI tools has made it easier to convincingly mimic real people, lawmakers have scrambled to empower individuals like Swift to better protect their right of publicity. The federal NO FAKES Act, currently under debate in Congress, would make it illegal to publish a “digital replica” of someone’s likeness without their express consent, including one's voice or image. Trump’s post, which showed a realistic, AI-generated replica of Swift’s image without her consent, would almost certainly violate that new federal law. However, even without the NO FAKES Act, states across the country already protect the right of publicity and would likely give Swift grounds to sue Trump and his campaign on that basis. A trademark infringement and false advertising claim under the Lanham Act would be another credible cause of action for Swift. She may also have a cause of action against Trump for defamation, alleging that the false presidential endorsement harms her reputation. However, such litigation could be costly and time-consuming, and Trump has potential defenses such as pointing the finger at those who originally created the images or arguing that his posts were free speech shielded by the First Amendment.
Rather than go down that long and winding litigation road, the best way for Taylor Swift to fight the false endorsement might not be in a court of law but in the court of public opinion. Swift should fight Trump’s fake endorsement with a legitimate endorsement of her own, broadcast across social media to her millions of faithful fans, many of whom are of voting age. That would be a remedy far beyond what any court could grant, and one that would likely hurt Trump far more than any Judge could do by issuing a legal ruling from the bench.
Wallace Collins is an entertainment lawyer and intellectual property attorney based in New York with over 30 years experience in music, film, television and emerging technology, and he handles many digital media matters including issues that arise with AI. He was a songwriter and recording artist for Epic Records before receiving his law degree from Fordham Law School. Website: http://www.wallacecollins.com
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