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Donald Trump recently posted images again that appeared to show Taylor Swift and her fans supporting him.
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The images show an AI-generated campaign poster in which Swift calls on people to “vote for Donald Trump.”
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Legal experts debated the pros and cons of Swift’s options: suing Trump or publicly denouncing him.
Should Taylor Swift Sue Donald Trump or Just Let It Go?
The dilemma arose on Sunday when Trump reposted — or “re-Truthed,” as it’s called on his Truth Social platform — photos that falsely showed Swift and her fans supporting the Republican Party’s presidential candidate.
“I accept!” the former president captioned the post, which included a campaign poster generated by artificial intelligence. The poster shows the pop star wearing a red, white and blue top hat and reads: “Taylor wants you to vote for Donald Trump.”
“You’re going to get sued,” one angry Swift fan quickly responded. “I see a cease and desist order,” predicted another.
Legal experts and celebrity advocates told Business Insider that Swift could indeed sue the former president, including on federal grounds of trademark infringement and false advertising. She could even try to take advantage of some states’ laws against deepfakes in campaign communications, some said.
However, experts disagreed on whether Swift would win her case if she went to court, with almost all saying the chances of her success were slim.
Representatives for Swift did not immediately respond to a request for comment on Monday.
A legal threat that doesn’t actually lead to a lawsuit might be the smartest move. Most experts agreed that a letter from a lawyer asking Trump to remove the post could work on its own, and would certainly be Swift’s best first step.
“Swift could sue Trump and those who misused her likeness by creating AI-generated images,” said Neama Rahmani, president and founder of West Coast Trial Lawyers.
“Privacy torts protect people from having their name, image or likeness used without their consent. Manipulating it using AI changes nothing,” he said.
Rahmani pointed to a recent case where OpenAI removed a ChatGPT voice that sounded eerily like Scarlett Johansson, after the actor hired a lawyer and publicly complained.
Swift’s lawyers have also been aggressive, Rahmani said. Earlier this year, her lawyers sent a cease-and-desist letter to a college student who followed her private jet, and she once sued a radio host who she said groped her. “So I wouldn’t be surprised if they at least sent the Trump campaign a cease-and-desist letter,” Rahmani said.
According to Harry Surden, a law professor at the University of Colorado, the superstar would be best off publicly denouncing Trump.
“Swift’s best option, in my view, is not a legal one, but to publicly communicate that Trump’s use of her image and endorsement is false and misleading,” Surden said. “She could also send a public cease-and-desist letter.”
Swift has not yet endorsed any presidential candidates for the 2024 race, but she did support the Biden-Harris campaign in 2020.
James Walker Jr., a veteran Atlanta entertainment attorney who represents the estate of Isaac Hayes, is firmly in the “suing Trump” camp. Last week, the estate publicly criticized Trump’s campaign for using the R&B legend’s song “Hold On, I’m Coming” more than 100 times at rallies and events over the past two years.
“Taylor Swift is a brand that is worth billions of dollars,” said Walker, whose company has told Trump it plans to file a $3 million lawsuit in the Hayes case.
“She probably trademarked her name, just like Aretha Franklin and others that I represent own their trademarks,” he said. “You have to protect your brand, your trademark, and if you don’t respond right away, then you’re showing that you accept this, and then others will.”
Swift could allege trademark infringement by arguing that the Trump campaign obtained an improper advantage by reposting the false endorsement, said Paul Michael Wilson, a trademark expert at Walker & Associates.
“This is really bad — someone should have told him not to do that,” Wilson said, laughing. “Really?”
Walker, Wilson and others pointed to the Lanham Act of 1946, a federal law that protects trademarks of commercial interests from unauthorized use, false advertising and unfair competition.
“You could argue that Trump’s post is an advertisement” that is protected under the law, said Jessica Litman, who teaches trademark and copyright law at the University of Michigan. Still, Litman said she “expects a court to be careful not to undermine political speech.”
“Having no idea is no defense”
“It is not out of the question that he actually believes the other images are authentic,” Litman said.
“He has posted things in the past that show there is confusion about how to tell if an image is real or AI generated,” she said, but “having no idea is not a defense.”
According to Litman and others, Swift would also have to show that she actually suffered harm.
“If Trump were to go through with this, I could imagine a fundraising post that would exploit the misconception that Swift endorsed him, which would lead to prosecution,” Litman said. “But we haven’t seen that yet.”
Surden agreed, telling BI that Swift “wouldn’t have any strong legal claims against Trump in this scenario, in my opinion.”
“US law has strong protections for free speech under the First Amendment, even for false statements, as Trump may have made here,” Surden explained.
“Political speech is very strongly protected by the First Amendment,” even if it is false or misleading, he noted.
Experts say Trump can also protect himself by saying the post was satirical and that he had nothing to do with creating the image and little to do with posting it online.
As for the AI-generated likeness: “A handful of states have recently passed laws limiting the spread of deepfakes in election communications,” said Mark Bartholomew, a law professor at the University at Buffalo.
“That would be the key place Swift would have to look,” Bartholomew said. “Intent would be key. Swift would have to prove that the Trump campaign sent out these images with the intent to mislead voters.”
Swift is from Tennessee, and if she were to file a lawsuit there, she should know that the state recently passed the ELVIS Act, which allows people to sue someone who uses a deepfake of their likeness to raise money, said Juan Perla, a partner at the New York-based international law firm Curtis, Mallet-Prevost, Colt & Mosle LLP.
By filing a lawsuit, Swift may be entitled to a court order — at least temporarily — ordering Trump to remove the post, Perla noted.
“But what will likely happen first is something similar to what Celine Dion did when she criticized the Trump and Vance campaigns and ridiculed them for using her Titanic theme song at one of their rallies without her permission,” Perla said.
It worked for Johansson, at least. OpenAI’s new chatbot voices recently rolled out to select users — and the voice that resembles the actor’s is nowhere to be found.
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