Last month, a new class action lawsuit was filed in California federal district court against the maker of the app “Reface,” which allegedly allows users to swap their face onto that of a celebrity in images and videos. The plaintiff in the case, Kyland Young, was a finalist on the reality TV show Big Brother. He alleges that Reface allows users to “become” him and to recreate his scenes from the show with their face in place of his. Young alleges that in doing so, the defendant is commercially exploiting his likeness without his permission in violation of California’s right of publicity statute. Young asserts the claim on behalf of a putative class of “[a]ll California residents whose name, voice, signature, photograph, or likeness was displayed on [the] Reface application . . .” Young does not allege how many likenesses were available for use on Reface, but he does allege they are enough to satisfy Rule 23’s numerosity requirement. See Young v. NeoCortext, Inc., Case No. 2:23-cv-02496 (C.D. Cal.).
Young may foretell the emergence of a new breed of class action litigation brought upon by artificial intelligence. Traditionally, intellectual property class actions are relatively rare. But generative AI makes it possible to create a large number of potentially infringing—but not identical—new works with one technology. When a single technology is involved, plaintiffs like Kyland Young may allege that there are enough common questions to make a class action appropriate. In turn, defense lawyers may come to rely on core intellectual property doctrines and defenses—e.g., substantial similarity, fair use, and the First Amendment—in opposing class certification in ways they have not before.