Recently, online publications reported that actor Bruce Willis was the first Hollywood star to sell the rights to his digital image to an Artificial Intelligence video production company called Deepcake. This firm makes “digital twins” (deepfakes) of celebrities for use in films and advertising. The deal would’ve allowed Mr. Willis, who is suffering from health issues, to continue monetizing his intellectual property without being physically present. The actor’s agent later denied any sale of his rights, but he did give permission last year for his deepfake image to be used by the firm to create a Russian language advertisement.
What are deepfakes?
Deepfakes are synthetic media using a form of artificial intelligence called deep learning in which a person’s face, body, or voice is digitally edited, and when “an existing image or video is replaced with someone else’s likeness.” Their use has grown recently as the technology behind their creation has improved. Additionally, the computing power and software required to create deepfakes have become more accessible to the public. Several free, user-friendly apps that make deepfake technology are now accessible to the general public and those without technological expertise.
To date, the most prevalent use of deepfakes is face replacement pornography, where the likeness of an individual, most often a celebrity, has been used in conjunction with a porn star’s body. This creation can greatly distress the targeted celebrity. There has also been a growing use of deepfakes for fake videos of politicians. This use can potentially be highly disruptive on a large scale, for example, distorting political elections or manipulating public opinion.
As more studios opt to use AI to replicate celebrity likenesses (and sounds) in films and commercials, there is broader uncertainty around using famous faces and voices, and the intellectual property legalities stand to get more complicated. No federal law in the U.S. specifically protects a person’s image or personality. What we do have is various state laws and reliance on common law.
What Are Image Rights?
“The concept of image rights argues that “every individual has the right and ability to decide how their picture, name or voice is used.” Social media influencers, celebrities, and people in the public eye can successfully utilize their status and personality to create value. Therefore, an image right is a commodity that can be bought and sold, and necessary to protect it. By protecting it, a person can prevent exploitation and ensure its proper use to maximize its value. Some celebrities in the U.S. and elsewhere have resorted to obtaining a trademark registration for their image, signature, names, and other representations (Paris Hilton registered her famous “That’s hot” phrase). Trademark federal protection gives them the right to sue infringers for misuse. It also ensures that no one can profit from using their likeness without a license. Doing so could easily result in a lawsuit.
From the above, you would presume that these rights only apply to famous people. This assumption is incorrect. Every individual has rights attached to their image by common law. As individuals, we hold a proprietary right to our personality and have the right to prevent unauthorized use of our name and/or likeness. It is not an absolute right, but generally, there is a right to stop exploitation.
How can you protect your image and use it?
Individuals do not have absolute ownership right in their names or likenesses. “The law does give individuals certain rights of privacy and publicity such the rights to control how your name, likeness, or other identifying information. Individuals can protect these images or license them for profit,” said attorney Marcos Garciaacosta.
A registered trademark may be one of the predominant ways to protect image rights. There are several ways to do this, depending on your case: to protect names, brands, or logos under image rights. Protecting images in photos, film, videos, audio, or illustrations, the individual can decide to file copyrights. Individuals may prefer to register design creations under industrial designs. Having a registered trademark or copyright filing is proof that the proprietor is the owner of the registered mark or copyright. Therefore, you can take legal action in the event of an infringement. You can learn more about it in our blog here.
Bruce Willis is Not Selling for Now
In the case of an actor, such as Bruce Willis, wanting to license their image for movies or commercials, the technology will be opening opportunities for continuing monetizing their valuable images and star power.
If you have any questions about image rights or are an influencer in need of guidance, please call attorney Marcos at (480) 324-6378 today.