Why turning personality into property is good for actors and studios alike

The world of artistic expression was once perceived as a marketplace in which resources were scarce. Jean-Luc Godard (December 3, 1930 – September 13, 2022), the famed French-Swiss New Wave cinematographer, opined about cinema, “When I die, it will be the end.” Godard passed away in September 2022.[1] His artistic expression in film endures. Carrie Fisher (October 21, 1956 – December 27, 2016) probably had the firmest grasp on this concept that her artistic portrayal of Princess Leia will endure. She said as much during her speech for George Lucas at the AFI Lifetime Achievement Awards.[2] Her passing caused an unprecedented stir in Hollywood – most notably due to the reprisal of that her role in 2015’s Star Wars: The Force Awakens and in speculation over her character’s return in later episodes.[3]

Artistic expression can be captured and exploited as an image right. Similar to a right of publicity, image rights involve the commercial exploitation of a person’s identity and associated images. They are related to the distinctive expressions, characteristics, or attributes of, or associated with, a personality made available to public perception.[1]“There is currently a strong trend to ‘propertize’ everything in the realm of information. Intellectual property law is expanding almost daily as new rights are created, or existing rights are applied to give intellectual property owners rights that they would never have had in an earlier time.”[4]

A whole new industry has been built on this concept via social media influencers on TikTok and Instagram. Some even enjoy income from such exploitation. There is value in the fame of a celebrity even after that person’s death. The issue is not one of moral rights, artistic integrity, or an actor’s sensibilities; it is about markets. Private property rights in intellectual property goods are a simple result of changes in economic value that stem from the advancement of new technology and the opening of new markets.

According to the Guernsey Image Rights Ordinance, Carrie Fisher (while alive or now her estate) can register her image – as herself, as Marie from When Harry met Sally, as Princess Leia, as any of her other roles in film or in life – as an item of intellectual property. The right of publicity law remains an erratic and fluid area of protection due in part to the fact that not all jurisdictions have enacted laws explicitly protecting the right of publicity. Hence, the Guernsey Image Right legislation can be advantageous in the protection of personality. Firstly, it requires fixation; and as such, secondly, it can be registered. This registration turns a personal right into a property right.

Filmmakers have been utilizing innovations in digital technology to resurrect characters after a performer dies. They know that humans/actors will go obsolete long before their artistic mediums do. Now artificial intelligence is pushing the boundaries even further. As deepfakes evolve, fears are mounting that future films, TV shows, and commercials may not need humans at all.

Should a producer be able to cast a young Sean Connery in a new James Bond film without having contracted for the right? Bruce Willis’ agent considered this possibility. In 2021, Bruce Willis[5] gave DeepCake permission to use their deepfake tech and to insert his likeness into a series of advertisements for the Russian telecom company, MegaFon.[6]First, DeepCake trained an AI on Willis’ likeness to create the deepfake using tens of thousands of images from when he was in his Die Hard heyday. After that two-week process, the AI was able to incorporate Willis’ face on the body of Konstantin Solovyov, who stood in for Willis in the ads.[7]

Willis had many positive things to say about this $1-2 million dollar opportunity to have his “digital twin” created.  He is quoted as saying, “With the advent of modern technology, even when I was on another continent, I was able to communicate, work, and participate in the filming. It’s a very new and interesting experience, and I thank our entire team.”[8] DeepCake alleges that its engineers would only need three to five days to recreate Willis for future projects approved by the actor’s estate, allowing him to keep entertaining fans well into the future.[9]

The tremendous creative potential for deepfake technology extends from the resurrection of old Hollywood icons in new works to trading out the voice and face of a big-time celebrity through AI. James Earl Jones has provided Respeecher with vast audio clips to train an AI to replicate his voice. Darth Vadar’s voice will remain iconic forever as future Star Wars installments will be able to use deepfaked audio. Productions costs could be significantly cut for talent’s day rates, travel, insurance, and accommodations. The way we watch foreign films could be dramatically altered due to perfect lip-syncing; dubs would no longer have the alienation effect of the audio failing to match the visuals.[10]

DeepCake claims to be ready to recreate virtually any celebrity. Their CEO, Maria Chmir, said in a press release: “We create a digital asset for celebrities directly or for specific collaborations with their agents. Our general mission is to help celebrities monetize their digital copies while being fully in control of their use and managing these rights.”[11]

DeepCake is a Russian company, so they are mindful of Russian laws regarding personality rights, which are limited but can be found in Part IV of the Russian Civil Code, Article 1511 entitled “Protection of Image of a Person.” It states that “public disclosure and further use of a person’s image (including his or her photographic picture, video recording, or a work of visual art) are allowed subject to the approval of that person only.” Further, after the person dies, their image may be controlled only by a surviving heir. Another interesting point is that a person’s name must be registered at birth if they wish to have it protected.

As noted earlier, publicity rights are personal and vary dramatically from jurisdiction to jurisdiction. However, these shortcomings can be overcome by using the Guernsey image rights register.

Deep fakes demonstrate that you can capture most elements of a personality via the digital ephemera of a life captured in pictures, video, and sound. Can this be protected?  Yes. Written work, social network interactions, personal data, and other similar self-expression can be used to recreate a personality representing considerably more than the sum of the original parts. Defining a personality as an entity’s ability to express something unique by any means, then the digital personality created by these various companies meets that criterion.[12]

The law in the jurisdiction of Guernsey has caught up to this notion by allowing the registration of your personality using the Image Rights (Bailiwick of Guernsey) Ordinance, 2012 (‘IRO’). A registered personality gains protection over any distinctive characteristic or ‘image’ associated with the registered personality. Thereafter any: “…photograph, illustration, image, picture, moving image or electronic or other representation…”[13] recognizable as said personality 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…” are also explicitly protected under the law.[14] 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 – your digital ephemera.

This law is unique and advantageous because it appreciates that sometimes it is the combination of otherwise non-unique data that uniquely identifies each of us. Each and any of these characteristics are registrable, provided they are recognizable by a “wide or relevant sector of the public,” including your family or group of friends.[15] The law has been written to comply with international IP conventions. Thus, it should be enforceable in jurisdictions where reciprocal recognition of relevant legislation exists.^[16]

Creating a registered personality and associated images in this manner generates a statutory property right.[17] The registered personality can be owned by the individual during their lifetime and bequeathed at death just like any other personal property right. Alternatively, this property can be placed into an appropriate corporate holding structure in a jurisdiction of choice. This property right can be renewed (in a similar manner to a trademark) very simply every ten years for as long as desired.[18]

Once registration is complete, all recognizable characteristics of that personality are automatically protected against unauthorized commercial exploitation by others. Providing infringement can be evidenced in Guernsey (irrespective of where it occurs). The protection is potentially global in reach. (E.g., UK – Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK). California – Uniform Foreign-Country Money Judgments Recognition Act)

Better still, by creating actual IP assets, these can be integrated into effective inheritance planning ahead of death, thus, taking them out of the estate probate process entirely. In other words, a registered personality can continue without interruption and independent of the celebrity upon which it was based. Unlike most US publicity rights, registered personality rights can be renewed indefinitely and are much broader in scope. Voice, likeness, mannerisms, gestures, sounds, personal data, social network profiles, and so forth can all be protected.

Conclusion:

This new digital technology detaches information from the physical plane, where property law has always been defined. An artist or inventor gets paid for the ability to deliver an idea into reality. The value is in the conveyance and not the thought conveyed. The law protected the physical expression. In other words, the bottle was protected, not the wine.^[19]

Like most technology that evolves with each iteration, deepfakes have been improving exponentially over the past few years: They have grown more cost-effective, take less time to execute, and are more challenging to recognize than ever. With this innovative technology at our fingertips, we are likely to see even more people playing around with its creative potential, with more ingenious applications to be discovered.^[20]

[1] Image is Everything™: The New Image Right of Guernsey – Icondia

[1] Jean-Luc Godard Was Cinema’s North Star | The New Yorker

[2] Carrie Fisher, 2005 AFI Lifetime Achievement Awards ceremony honoring George Lucas. The Immortal Carrie Fisher, a.k.a Princess Leia – Icondia

[3] Another from the Star Wars canon, Grand Moff Tarkin, originally played by long-dead actor Peter Cushing, was recreated in the recent Rogue One: A Star Wars Story.

[4] Lemley, 1997

[5] In March 2022, Willis’ family announced that he would be stepping away from acting due to a recent diagnosis of aphasia, a language disorder impairing his cognitive abilities.

[6] Bruce Willis sells his likeness for a deepfake ad (freethink.com)

[7] Id

[8] Deepcake — Al solutions for video production

[9] Bruce Willis Sold The Rights To His Likeness To A Deepfake Company, Making Him First Actor To Authorize A ‘Digital Twin’ (uproxx.com)

[10] Deepfakes: The New Ticket to Immortality? – Rolling Stone

[11] Deepcake — Al solutions for video production

[12] Your name is an aspect of your personality as well as your personal data – Icondia

[13] The Image Rights (Bailiwick of Guernsey) Ordinance (IRO), 2012 s 3(1)(c)

[14] IRO s 3(1)(b)

[15] IRO s 28(2)

[16] In situations where a money judgment order has already been made, many jurisdictions automatically ensure this is so under reciprocal agreements. (E.g., UK – Foreign Judgments (Reciprocal Enforcement) Act 1933 (UK). California – Uniform Foreign-Country Money Judgments Recognition Act)

[17] IRO s 2(1)

[18] IRO ss 18 & 19

[19] Angela Adrian (2012) Avatars Inc. – The Legal Personality Of Avatars at http://www.icondia.com/library/avatars-inc-legal-personality-avatars/ citing, John Perry Barlow, Selling Wine Without Bottles: The Economy of the Mind on the Global Net, ELEC. FRONTIER FOUND., https://www.eff.org/pages/ selling-wine-without-bottles-economy-mind-global.net

[20] Deepcake — Al solutions for video production