Offit Kurman Blogs

Well-known actor Matthew McConaughey has attracted headlines following the registration of a number of trademarks, not just related to brands with which he may be associated, but also those that address his pop-culture persona. Most interesting among these is McConaughey’s recent registration of the phrase "Alright, alright, alright," first uttered by the actor in the 1993 film Dazed and Confused, which has become strongly associated with the actor’s laid-back, Texas public image. McConaughey, however, has not only registered “Alright, Alright, Alright” as a trademark, but also as less common sensory marks. Sensory marks are trademarks that identify brands through senses other than just text or static logos. Well-known examples include the three-note (G-E-C) NBC Chimes, the MGM lion’s roar accompanying many well-known films, and the specific scent of Play-Doh. According to McConaughey’s legal team, the registration of these sensory marks and other recent registrations represents an attempt to enforce against the ever-increasing problem of AI-generated “deep fake” videos, in which celebrities or other well-known individuals are impersonated, in strikingly authentic fashion.

The registration of “Alright, Alright, Alright,” (Reg. Nos. 7995951 and 8070191) as sensory marks, specifically, has the potential to represent a tactical shift in celebrity rights management. By securing federal trademark protection for the specific sound and motion of his delivery of the phrase, McConaughey attempts to move beyond the patchwork of state-level "right of publicity" laws. A federal trademark registration provides nationwide constructive notice of McConaughey’s ownership and creates a legal presumption that his distinct mannerisms and delivery of the phrase serve as source identifiers for the registered Class 09 goods and Class 41 entertainment services, which constitute his on-screen performance. In the context of AI, this allows his legal team to pursue infringement claims under the Lanham Act against entities using AI voice clones or deepfakes to endorse products. Unlike a right of publicity claim, which often requires proving the appropriation of one's "likeness," a trademark claim focuses on consumer confusion; specifically, whether an AI’s use of the catchphrase falsely suggests McConaughey’s sponsorship or approval.

However, relying on trademark law to police AI has significant limitations. The primary hurdle is the "commercial use" requirement; trademark laws are designed to prevent consumer confusion in the marketplace, not to protect personal dignity. Consequently, this registration may be ineffective against non-commercial AI generations, such as artistic deepfakes, memes, or satire, which may be protected by the First Amendment or the doctrine of Fair Use. Ultimately, the scope of protection offered by these new registrations may be narrow. While McConaughey can now vigorously enforce against an AI creation saying “alright, alright, alright," this specific registration offers little recourse against an AI model mimicking his voice to say anything else. Infringers could potentially bypass this protection by simply creating AI content that avoids his registered catchphrases while still exploiting his vocal timbre and mannerisms. While this registration adds one weapon to his arsenal, it is likely a specific deterrent rather than a comprehensive shield against unauthorized digital exploitation.