Deepfakes and trade mark law - talk to a trade mark attorney to avoid being Dazed & Confused...

Deepfakes can pose a genuine threat to goodwill and the “brand of identity” vested in the appearance of well-known individuals, particularly those in the entertainment industry. 

The role of trade mark law in this sphere is yet to be explicitly determined, but this has not prevented individuals from seeking to protect elements of their appearance, expressions, or behaviour via trade mark registration. In the UK, for example, we have seen Premier League footballer Cole Palmer register a motion mark in relation to his “cold” celebration as well as a figurative mark for his face. 

The objective of such filings is to seek to carve out exclusivity in a well-known appearance, expression, or motion, that consumers associate with one individual, in order to prevent third parties from exploiting the associated goodwill without consent, as well as increasing the value of these elements of an appearance and behaviour so that they can be properly exploited by the individual concerned. 

This week, we have seen reports that Matthew McConaughey, the Oscar winning actor, has registered motion and sound marks in the USA in relation to goods and services in classes 9 and 41, including “entertainment services, namely, acting services in the nature of live performances and personal appearances by an actor and celebrity”.

The filings consist of the following:

• Separate motion mark filings in class 9 and 41 claiming a 7 second video of Matthew McConaughey saying “just keep livin' right, I mean what else are we gonna do?”;
• Separate motion filings in class 9 and 41 claiming a 3 second video of Matthew McConaughey saying “alright, alright, alright”, which is a well-known phrase from his role in Richard Linklater's Dazed & Confused;
• A sound mark in class 41 consisting of Mathew McConaughey saying “alright, alright, alright”. 

Alongside the motion filings are descriptions of the marks, which outline his appearance, clothing, environment and the movement of his head and body. The descriptions make no explicit reference to the words that he is speaking. Alongside the sound mark filing is a description of the phrase that is spoken. 

The motion marks' descriptions do not explicitly reference the words being spoken in the videos in the descriptions and therefore appear to be an attempt by the actor to protect his own appearance and acting style via trade mark registration. I am unsure whether these filings would be accepted for registration in the UK, as it is not clear that they have any particular level of distinctiveness above and beyond the well-known reputation of the person present in the videos. There is no distinctive motion present in the behaviour presented in the videos themselves. In the UK, one approach may have been to file a still image of the actor.

On the face of it, the US sound registration does not provide exclusivity to the sound or mannerisms associated with the actor's voice but to the phrase being said in that particular style. 

The ability to enforce the registrations against third parties would appear to be relatively narrow. However, they could in principle be relied upon to prevent a third party’s commercial use of a deepfake of the actor or the use of the term “alright, alright, alright” in the same style and also be licensed to production companies or even advertisers seeking to use his voice or likeness in productions or promotional content. 

This is a growing area of IP law, and operators in the entertainment industry that are seeking to claim exclusivity in their likeness and other elements of their personality such as appearance, voice, movements, or well-known phrases, should seek advice from a trade mark attorney to adopt a proper filing strategy. 

My colleagues, Christophe Van Zyl and Mike Shaw, and I also explore this area further in a recent article here: “Can a face be registered as a trade mark – the topic for 2026?”

"We want to create a clear perimeter around ownership with consent and attribution the norm in an AI world".

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