The Bruce Willis Deepfake Is Everyone's Problem Via WIREDUK
“The right of publicity requires the commercial appropriation of identity while tort law does not always require a commercial element,” explains Simon. “If an actor's deepfake is manipulated to portray someone in a defamatory manner, or used to defame someone else, the actor may have the ability to sue in tort."
Actors unions have been fretting over deepfakes for decades. The Screen Actors Guild—American Federation of Television and Radio Artists ’s interest began with sports video games, which started generating their own image rights controversies back in 2013.
“This is relevant not just to AI contracts [for synthetic performances], but any contract involving rights to one’s likeness and voice,” says Danielle S. Van Lier, assistant general counsel, intellectual property and contracts at SAG-AFTRA. “We have been seeing contracts that now include ‘simulation rights’ to performers’ images, voices, and performances. These contract terms are buried deep in the boilerplate of performance agreements in traditional media.
Yet, and here’s the rub, actors also see the rise of deepfakes as a chance to cash in. “While many never become ‘famous,’ their names, voices, images or likenesses still attain commercial value,” explains Van Lier. The commercial opportunities of synthetic performances–an actor’s voice used in an automated audiobook or appearance as a digital avatar, abound, hence why SAG-AFTRA is pushing away from the term deepfakes–and its association with porn–to terms like “digital double” or “AI-generated.
This is where the importance of “transferability” of publicity rights comes in: A law passed in New York in 2020, for instance, allows postmortem rights to be transferred. “The ability to license and convey this property interest provides an important source of revenue to these professionals and their families,” says Van Lier. “Licensing allows creative professionals to work with entities and individuals with technological, financial and legal expertise, and to maximize the value of the asset.