Eterni.me: Interactions from beyond the grave

Earlier this year a website for start-up company Eterni.me went live. “So what?” you might ask. Eterni.me, however, is company dedicated to providing a virtual personality that will survive the death of the real person on which it is based, and with which people can continue to interact afterwards. If that sounds a little strange, consider the fact that over 20,000 people registered on this site within the first month of it going live. Either you conclude that there are at least 20,000 strange people out there (always possible) or else you accept that 20,000 potential customers is a convincing demonstration that there really is a desire to recreate a loved one in this way.

If – like me – you fall into the category of finding this a little spooky, then perhaps we should look back at how people have attempted to preserve their identity beyond the grave for the benefit of those who remain. Since time immemorial, accounts of people and events have been handed down in the oral tradition to preserve the memory associated therewith. The images of loved ones have been captured in portraiture or sculpture for centuries. The nineteenth century saw the birth of photography – which was an anathema to many cultures to the point where they felt the spirit of the person thus photographed was captured. More recently the twentieth century brought us moving pictures, hi-fidelity sound & video, and even holographic projection.  All of these concepts are familiar to us and we are comfortable with, but no doubt would have caused progressively more disquiet to each previous generation.  Ultimately of course we end up with the scenario posed by Arthur C Clarke’s third law of prediction that “any sufficiently advanced technology is indistinguishable from magic.” It is at that point usually that things begin to feel spooky.

The concept posed by Eterni.me is hardly original. Charlie Brooker’s TV series ‘Black Mirror’ explored this superbly in the episode ‘Be Right Back’,  where the bereaved wife acquires a life-like avatar infused with her partners social network personalities as a substitute for the real person. Similarly Ari Folman’s film ‘The Congress’ (based on an older story) portrays what happens when a virtual personality eclipses the fading and ultimately forgotten human personality on which it was based. What is different about Eterni.me is that they are potentially the first company ready to make the transition from fiction into fact.

So, historical progress and science fiction both hint at what may come. In the case of Eterni.me we are faced with the prospect of a Turing-test in respect of our loved ones, which in the light of technological progress should not of itself surprise us. What should perhaps surprise us is if people fail to avail themselves of such a convincing experience. Our response, therefore, to proposals such as Eterni.me should not be to sideline this as some sort of borderline activity for those unable to gain closure in any other manner, but to accept and even embrace the fact that this is what the future holds. If this then is the future, we need to consider how these virtual personalities will exist within our society now.

Real people of course have rights merely by existing. When they die, their rights largely die with them. In the US, states such as Indiana and California permit certain posthumous publicity rights; but these tend to be limited largely to the use of the visual image and are usually time-limited. How does one capture and protect all the elements of a personality?  Pictures, video, sound, written work, social network interactions, personal data and such like?  Collectively, these components can be used to recreate a personality that represents considerably more than the sum of the component parts.  That, of course, is the premise on which Eterni.me plans to build its business. Without the real person in whom these rights originated, what rights does the digital simulacrum have? If we define a personality as an entity’s ability to express something unique by any means,^[1] then the digital personality proposed by Eterni.me meets that criterion absolutely. It, therefore, deserves protection of its own, not merely through that of its creator.

Conveniently, the solution already exists. It is possible to register a personality in the jurisdiction of Guernsey using the Image Rights (Bailiwick of Guernsey) Ordinance, 2012 (‘IRO’). By doing so, a registered personality gains protection over any distinctive characteristic, or ‘image’ associated with the registered personality.  An individual – let’s call him Joseph Smith – would choose to register the personality ‘Joe Smith’ as a registered personality on the Image Rights Register and thereafter (subject to certain exceptions) any:

“…photograph, illustration, image, picture, moving image or electronic or other representation…” ^[2]

recognizable as Joe Smith would be protected under the IRO.  By any definition that captures both digital and physical avatars.  But it is not just the representation of the personality that is registrable, but the characteristics that make up that personality;  for example:

“the voice, signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures, mannerisms, and any other distinctive characteristic or personal attribute…” ^[3]

are also specifically protected under the law. That last catch-all provision of “any other distinctive characteristic or personal attribute” neatly captures any personal identifiers, data, sound/voice/video files, views and expressions. Furthermore, the law is smart enough to recognize that sometimes it is the combination of otherwise non-unique data that uniquely identifies each of us.^[4]  Any of these characteristics are registrable, provided they are recognizable by a “wide or relevant sector of the public.”^[5]  That would include a family or group of friends. The creation of a registered personality and associated images in this manner creates a statutory property right.^[6]

Thus, we have a means to capture and protect the intellectual property that registered personality has become: but who owns this and how will it survive death of the original personality on which it was based? The registered personality can be owned by the individual during their lifetime and bequeathed at death just like any other personal property right.   Alternatively, it can be placed into an appropriate corporate holding structure in a jurisdiction of choice. The point is: it is a property right – and one that can be renewed very simply every ten years for as long as desired.^[7]

For many people simply preserving and protecting the memory of a loved one in this manner will be sufficient.  For some however, there will be an added commercial element.  It is sadly true that often the value of image rights associated with a successful personality increases after their death – particularly if they died whilst young or at the height of their fame. Think of James Dean, Marilyn Monroe, Amy Winehouse and many others. Using the IRO provides by far the most comprehensive way to protect the whole personality, whilst at the same time providing a mechanism to identify and commercially exploit individual facets of that personality.  It is as granular as one wishes to make it and can provide the ultimate degree of fine control over who gets to use different aspects of the registered personality and for what purpose. It is a superb tool for those companies who negotiate image rights fees for their clients (alive or dead).

From the point of view of Eterni.me, we have in the IRO, a mechanism that exists now, and one that can provide their customers with comprehensive property rights over the digital personalities that will outlive them; rights which will survive and can be passed from generation to generation. However, there is a final twist to the IRO that goes a long way to bring the vision of Angela Adrian in her 2012 paper closer ^[8], and that is this:  in addition to the registration of natural persons as registered personalities, the IRO also permits fictional personalities (and other categories)^[9] to be registered.  Thus one’s avatar can be registered as a personality in his or her own right and if you wrap up the ownership of that registered personality with an appropriate corporate structure, you end up with an avatar with effective legal personality.  Suddenly the future seems a whole lot closer.

This note is only intended to give a brief summary and general overview of this area of law.  It is not intended to be, nor does it constitute, legal advice and should not be relied upon as doing so.

Icondia comprises a team of experts that focus exclusively on the registration and management of image rights for an international customer base. 

For further information visit www.icondia.com.

© Icondia 2014