Associate William Bowyer discusses athletes’ image rights following an award of €200,000 to the family of former Formula One champion Michael Schumacher, over publication of an AI-generated interview of him in Die Aktuelle magazine, in Law360.

Will’s article was published in Law360, 14 June 2024.

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F1 driver AI case sheds light on winning tactics in IP suits

Athletes should ensure they protect their image, both via the contracts they enter into, such as sponsorship and broadcast deals, as well as by monitoring use of their image online. This will require considerable tenacity given that an uploaded image generated by artificial intelligence can suddenly go viral.

In this context, a decision by a Munich Labor Court to award €200,000 ($216,215) to the family of former Formula One champion, Michael Schumacher, which was reported in May[1] could set a precedent for athletes in image rights cases.

Although the circumstances of this case were highly unusual, given Schumacher’s profile and the nature of the interview in the article, the controversy over presenting quotes generated by AI as a genuine interview with Schumacher indicates that publishers cannot simply take advantage of the latest technology to behave less responsibly.

Indeed, the admission by publisher, Funke Mediengruppe that the April 2023 article in Die Aktuelle magazine was “tasteless and misleading”[2] indicates that athletes remain in a strong position when it comes to protecting their image and reputation.

Instead of encouraging media outlets to be ever more cavalier, this case implies that positive outcomes for sports personalities who take an aggressive and proactive approach remain achieveable.

The Schumacher case has opened the door for a wave of issues surrounding circumstances where third parties misuse image rights or create digital representations of real people without their authority.

In this particular example, the facts of the case indicate brazen misrepresentation on the part of Die Aktuelle. On the front cover of the edition in question, the headline ‘Michael Schumacher, the first interview!’ ran next to a photograph of the celebrity.

The magazine also wrote that “it sounds deceptively real”, with supposed, AI-generated quotes attributed to Schumacher. Only when reading the article on the inside pages did it become clear that the quotes had been produced by an AI tool.

Schumacher, the winner of seven F1 titles, has not been seen in public since being in an induced coma after suffering severe head injuries in a skiing accident in December 2013. The headline, which blatantly misrepresented reality, was obviously a ploy designed to attract maximum attention to potential readers not looking beyond the front cover.

Two days after publication, the magazine’s editor-in-chief Anne Hoffmann, who had held journalistic responsibility for the paper since 2009, was sacked and Bianca Pohlmann, managing director of Funke media group, apologised to Schumacher’s family.

Schumacher’s family was able to use Funke’s admission of responsibility and poor judgment against the publisher to reach a settlement, along with the fact that they wanted to reduce the public attention on this case as much as possible.

The battle between celebrities or brands and imitators is by no means a new phenomenon, and athletes and sports personalities work hard to protect the intellectual property and brand in their image, voice and likeness.

For instance, in February 2024, French football star Kylian Mbappé applied to European Union Intellectual Property Office to register a black and white logo depicting his crossed-arms celebration as a trademark[3] for  clothing, footwear, games, sports equipment, accessories, luggage, and printed matter such as books and magazines.

In doing so, he followed a path pioneered by his former Paris Saint Germain teammate Lionel Messi. Messi, who set the precedent, was engaged in a nine-year legal battle before the European Court of Justice finally approved his registration in September 2020 of an EU-wide trademark for a logo consisting of his name and a stylized letter ‘M’[4].

Seeking to monetise their image and using the law to proactively build their brand, Mbappé’s move is part of a wider trend by sports stars and celebrities to protect IP rights relating to their signatures, names, and other personal characteristics. Trademarking a logo, symbol, name or other similar mark grants these owners a monopoly right over their IP assets and helps to stop third parties from using their image without consent or payment.

While athletes have looked to the law to protect their brand and visual identity from copycats, the boom of generative AI has led to a slew of legal claims surrounding IP. Globally, lawyers are already seeing a rise in AI-related litigation surrounding image rights, and the German court’s decision will no doubt add to the momentum.

Another case, which could set a legal precedent in the UK, is the dispute between Getty Images and Stability AI[5], a London-based AI developer, which was filed in June 2023 and is currently pending trial before the High Court of Justice of England and Wales.

Getty claims that Stability AI is responsible for infringing its IP rights through the development of its Stable Diffusion system, which automatically generates images based on text or image prompts input by users. It argues that the synthetic images generated by AI in this instance reproduce in substantial part its copyrighted works.

Separately, in January 2023, a group of artists filed a claim against Stability AI in the U.S. District Court for the Northern District of California after one of them discovered that over 50 pieces of her artwork had been uploaded to LAION[6], a data set which feeds artificial intelligence image generators including Stable Diffusion.

The EU AI Act[7], which has been at the vanguard of legislation racing to catch up with the technology, proposes that AI tools will have to disclose any copyrighted material used to train their systems. As AI becomes more embedded into the workstreams of both online and print publications, it is likely that many more of these cases will occur.

While you cannot use someone’s image without their consent to sell or promote goods or services under both UK and EU IP law, there are exceptions when reporting the news. In the Schumacher case, however, Die Aktuelle were representing that the interview was both genuine and endorsed by his family in an attempt to sell their magazine.

Many well-known figures have already found their reputations damaged by such AI-generated images, which are so convincing that they are widely shared online – a scenario that athletes and their representatives will need to be ready to counter robustly.

Despite the general uncertainty that the widespread use of AI brings to image rights, the Schumacher case rightly shows a trend towards how athletes are looking to the law to protect their brand, enabling them to place themselves in pole position in image rights cases.

[1] https://www.bbc.co.uk/sport/formula1/articles/cd1176240lko.

[2] https://news.sky.com/story/michael-schumachers-family-win-legal-case-over-tasteless-ai-generated-interview-in-german-tabloid-die-aktuelle-13141870.

[3] https://euipo.europa.eu/eSearch/#details/trademarks/018984428

[4] C-449/18 P EUIPO v Messi Cuccittini and C-474/18 P J.M.-E.V. e hijos v Messi Cuccittini

[5] Getty Images v Stability AI [2023] EWHC 3090 (Ch)

[6] Andersen v. Stability AI Ltd., 23-cv-00201-WHO

[7] https://digital-strategy.ec.europa.eu/en/policies/regulatory-framework-ai