[foobarqux]

I don't think the intent matters (though it's moot in this case because I think there is clear intent): If someone unknowingly used a celebrity's likeness I think they would still be able to prohibit its use since the idea is that they have a "right" to its use in general, not that they have a defence against being wronged by a person in particular.

For example if someone anonymously used a celebrity's likeness to promote something you wouldn't need to identify the person (which would be necessary to prove intent) in order to stop have the offending material removed or prevented from being distributed.

[qarl]

> I don't think the intent matters

The closing statement of Midler v. Ford is:

"We hold only that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California."

Deliberate is a synonym for intentional.

[foobarqux]

The passage you cited reads "we hold only that when" (compare with "we hold that only when") which I understand as that they are defining the judgment narrowly and punting on other questions (like whether the judgment would be different if there were no intent) as courts often do. In fact the preceding sentence is "We need not and do not go so far as to hold..."

It might make sense for intent to be required in order to receive damages but it would surprise me if you couldn't stop an inadvertent use of someone's likeness. In fact the Midler case cites the Ford one: 'The defendants were held to have invaded a "proprietary interest" of Motschenbacher in his own identity.'. I think you can invade someone's "proprietary interest" inadvertently just as you can take someone's property inadvertently; and courts can impose a corrective in both cases, in the first by ordering the invasion of proprietary interest be stopped and in the second by returning the taken property.

[qarl]

Fair enough. But then Midler v Ford doesn't support your argument. Do you have a case that does?

[foobarqux]

No. (I did cite the Ford statement about "proprietary interest" which I think supports my argument).

I'm not familiar with all the case law but I assume that no case has been brought that directly speaks to the issue but people can and do discuss cases that don't yet have specific precedent.

[qarl]

Well - sure - for exotic areas of the law. Can the president pardon himself, etc.

Just seems like this area isn't that exotic.

[foobarqux]

I don't think that's true. I can't cite them off the top of my head but when I read about supreme court cases often a big point of contention of the ruling is whether they decided to issue a narrow or broad ruling. Sometimes they decide to hear a case or not based on whether it would serve as a good basis for the type (narrow/broad) ruling they want to issue.

And the legal universe is vast with new precedent case law being made every year so I don't think the corpus of undecided law is confined to well known legal paradoxes.

As for this case it doesn't seem that odd to me that the issue of intent has never been at issue: I would expect that typically the intent would be obvious (as it is in the OpenAI case) so no one has ever had to decide whether it mattered.