MKBHD vs. AskMKBHD: A Cautionary Tale

Marques Brownlee, the tech reviewing powerhouse known as MKBHD, threw down the gauntlet recently concerning an AI tool called "AskMKBHD”. An X [formerly known as Twitter] user posted a video demonstrating how “AskMKBHD” works, to which Marques responded “I would just advise in the future that if you're going to take all of someone's work and train an AI on it and publish a tool under their name where people can feel like they're having a chat conversation with that person - it would be great to at least ask them first"  

Link: https://twitter.com/MKBHD/status/1786393212816445499

This incident sparks a crucial conversation, and this is quite relevant for the South African landscape: what rights do creators have in South Africa when someone builds an AI using their content? While South Africa isn't there yet with AI-specific regulations, existing laws offer MKBHD some potential legal ammunition. 

Let’s explore. 

MKBHD's Legal Arsenal

South Africa's legal landscape might not have a specific "Right to Control Your AI Doppelganger" statute, but MKBHD could explore these avenues:

• Copyright: MKBHD's creative work, like his reviews, is likely copyrighted. If the AskMKBHD tool blatantly copies his content, it could be copyright infringement. This applies to verbatim copying, but also derivative works that are too close to the original.
  

• Publicity Rights: South Africa recognizes publicity rights, giving individuals control over their name, image, and likeness. The "AskMKBHD" name and the implication of interacting with MKBHD himself could be a publicity rights violation. Here, the key question is whether users are likely to be misled into thinking they're interacting with the real MKBHD.

• Passing Off: This is a common law principle that protects the "goodwill" or reputation of a trader from misrepresentation. In simpler terms, it prevents someone from passing off their goods or services as belonging to another.

MKBHD and Passing Off

MKBHD could argue that the AskMKBHD tool is passing off in two ways:

• Deception: If the tool doesn't clearly disclose it's AI and not the real MKBHD, users might be misled into believing they're getting MKBHD's insights. This could damage MKBHD's reputation if the AI recommendations are inaccurate or differ from his actual views. This falls off as the creator of the tool has already stated that it is an AI tool.

• Dilution: Even with disclaimers, the constant use of "MKBHD" might weaken the distinctiveness of MKBHD's brand. Over time, the public might associate the name with any AI-generated reviews, potentially affecting the value of the MKBHD brand itself.

By demonstrating these elements, MKBHD could potentially seek similar remedies available under copyright or publicity rights infringement, such as a cease and desist order or even damages.

Claims MKBHD Can Make

Based on the above, MKBHD could potentially make these legal claims:

• Cease and Desist: MKBHD could demand the AskMKBHD tool be shut down, arguing copyright or publicity rights infringement.

• Damages: If MKBHD can show he suffered harm, like lost revenue due to the AskMKBHD tool, he could seek financial compensation.

Protecting Yourself in the Age of AI

MKBHD's situation serves as a cautionary tale for creators in South Africa. Here's what you can do to be proactive:

• Register Your Copyrights: Copyright registration strengthens your legal position. While registration isn't mandatory in South Africa, it offers advantages in court.

• Register Your Trademark: One can argue that it would be prudent that the acronym ‘MKBHD’ is a brand and should therefore be trademark protected.

• Be Clear About Usage Rights: If you license your content (text, videos, etc.), have ironclad contracts specifying how it can be used.

• Stay Informed: The field of AI law is evolving rapidly. Keep yourself updated on developments in South Africa and consider consulting a lawyer specializing in intellectual property.

The South African AI Landscape: A Work in Progress

South Africa's lack of specific AI regulation creates uncertainty. The AskMKBHD case exemplifies the need for a legal framework that addresses data privacy, bias in AI, and the potential misuse of content. Discussions are underway, but for now, creators and AI developers alike have to navigate a bit of a legal wild west.

The Takeaway

MKBHD's situation highlights the urgency for South Africa to develop a comprehensive AI framework. While existing laws offer some protection, a dedicated legal structure would provide much-needed clarity and foster responsible AI development that respects the rights of creators.

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