'Deepfakes' in Celebrity Ads: A Creepy New Trend
Table of Contents
- Introduction
- Bruce Willis and the Use of Digital Twins
- Aphasia: A Devastating Neuro-cognitive Disorder
- The Legal Issues Surrounding Digitalized Faces
- Misappropriation of Likeness: A Subtort of Invasion of Privacy
- The Complexities of Celebrity Appropriation
- Calculating Damages in Appropriation Cases
- The Level of Protection for Celebrity Likeness
- The Tension Between Freedom of Speech and a Person's Right to Privacy
- Recent Cases on Invasion of Privacy by Appropriation
- The Application of Privacy Laws to Deep Fake Technology
- Copyright and Deep Fakes: A Complex Relationship
- State and Federal Legislation to Address Deep Fake Technologies
- Recourse for Deep Fake Victims
- Bruce Willis's Possible Legal Action
Bruce Willis and the Legal Issues Surrounding Deep Fake Technology
The use of deep fake technology, which creates ultra realistic digital twins, has become a topic of controversy in recent years. In September of 2022, the media reported that Hollywood star Bruce Willis had become the first actor to sell his rights and allow the U.S firm Deep Cake to use his face digitally. This news sparked a debate about the legal and ethical implications of using someone's digitalized face without their consent. In Willis's case, the existence of the agreement has been disputed by his relatives. However, if the agreement does exist, it raises questions about the potential violation of privacy and the misappropriation of likeness.
Aphasia: A Potentially Devastating Neuro-cognitive Disorder
Adding to the complexity of Willis's situation is the fact that he has been diagnosed with aphasia, a neuro-cognitive disorder that affects communication skills. This diagnosis further raises concerns about the ethical implications of creating a digital twin of Willis's face. While the use of deep fake technology could potentially allow Willis to Continue appearing in movies, it also raises questions about the authenticity and integrity of his performances. Furthermore, the use of someone's likeness without their consent can be seen as a violation of their privacy rights.
The Legal Issues Surrounding Digitalized Faces
The legal issues surrounding the use of a person's digitalized face, like in Bruce Willis's case, center around the tort of misappropriation of likeness. This tort, also known as appropriation, occurs when someone publicly uses the name or likeness of another person without their consent for their own benefit. In the case of celebrities, such as Willis, the use of their name and likeness holds clear commercial value, making it a violation of intellectual property. Damages in appropriation cases can be calculated Based on the value of the use of the likeness or on the illicit gain realized by the defendant. However, the level of protection for a celebrity's likeness varies depending on the jurisdiction.
Misappropriation of Likeness: A Subtort of Invasion of Privacy
Misappropriation of likeness is a subtort of invasion of privacy that has been used by celebrities when their faces have been used in advertisements for products they have not endorsed. While appropriation is broadly defined, it generally refers to using someone's unauthorized likeness for advertising or commercial profit. When the plaintiff is a celebrity, the analysis becomes more complex due to the clear commercial value associated with their likeness. However, courts must always balance the tension between the First Amendment's guarantees of freedom of speech and the press with a person's right to privacy.
Calculating Damages and the Level of Protection for Celebrity Likeness
The calculation of damages in appropriation cases, specifically when the plaintiff is a celebrity, depends on the jurisdiction. Some jurisdictions extend protection beyond name and likeness to include other features associated with the plaintiff, such as their voice, catchphrases, and habits. However, the level of protection for a celebrity's likeness must strike a balance between protecting their rights and ensuring freedom of speech and expression. It is a complex legal landscape that requires careful consideration of individual cases.
Recent Cases on Invasion of Privacy by Appropriation
Throughout history, there have been several cases that have Shaped the legal landscape surrounding invasion of privacy by appropriation. In the 1938 case Flake versus Greensboro News Company, a model sued a newspaper for publishing an advertisement that included her unauthorized picture. The court ruled that the plaintiff was entitled to nominal damages, as the photograph was used by mistake and without malice. However, the court acknowledged the tension between an individual's right to privacy and the newspaper's right to freedom of speech and press.
In a more recent example, the Colorado Supreme Court ruled in favor of a defendant in the case of Dickerson versus Ditmar. The defendant published an article in a newspaper that used the plaintiff's name and picture in reporting on her conviction for theft. The court determined that the defendant's use of the plaintiff's name and likeness in the Context of an article related to her crime and conviction was newsworthy and privileged under the First Amendment. This case highlights the complexity of balancing privacy rights and freedom of speech in the context of invasion of privacy by appropriation.
The Application of Privacy Laws to Deep Fake Technology
The emergence of deep fake technology has presented new challenges for privacy laws. Deep fakes are synthetic media created using artificial intelligence that can manipulate or replace a person's likeness in audio or video. The World Intellectual Property Organization has examined the issue of deep fake Contents, suggesting that deep fakes are subject to copyright and that the copyrights belong to the inventors of the deep fakes. However, relying solely on copyright as a weapon against deep fakes may not be sufficient.
Copyright and Deep Fakes: A Complex Relationship
The Current state of copyright law does not provide adequate protection against deep fakes. Under the fair use exception to copyright infringement, transformative use is permitted when a work employs the altering of a copyrighted work to Create something with a Novel message or meaning. Deep fakes can often be considered transformative and may be protected under fair use. This presents a challenge for victims of deep fakes who do not own a copyright interest in their own image.
State and Federal Legislation to Address Deep Fake Technologies
In response to the rise of deep fake technologies, there has been a flurry of state and federal legislation aimed at better understanding and addressing the creation and use of doctored video and audio files. While federal legislative efforts have primarily focused on research and understanding deep fake technologies, state-level legislation has been more attentive in providing recourse to victims. For instance, laws have been enacted to protect victims of pornographic deep fakes or to address deep fakes that emerge before elections to harm political candidates.
Recourse for Deep Fake Victims
Victims of deep fakes have limited recourse under current laws. If Bruce Willis considers suing the company for the unauthorized use of his image in the Deep fake commercial, he may argue that the commercial was not transformative enough to qualify under the fair use copyright exception. Additionally, he could potentially pursue legal action based on the tort of misappropriation of his likeness. However, the success of such legal action would depend on various factors, including the existence of an agreement allowing the use of his digitalized face and the jurisdiction in which the case is brought.
Highlights
- The use of deep fake technology in the entertainment industry raises legal and ethical concerns.
- Aphasia, a neuro-cognitive disorder, complicates the use of Bruce Willis's digitalized face.
- Misappropriation of likeness is a tort that celebrities can use to protect their rights.
- Calculating damages and determining the level of protection for celebrity likeness is complex.
- Recent cases have shaped the application of privacy laws in invasion of privacy by appropriation.
- Deep fake technology presents challenges for copyright laws.
- State and federal legislation aims to address the use of deep fake technologies.
- Recourse for deep fake victims is limited but evolving.