Whose face is it anyway?
A look at the rights around AI-generated faces and people
The rights issues that surround the use of AI to generate and animate people and faces are complex.
When you bring a still photo of someone to life using facial re-enactment, who’s copyright is that? The person whose face it is? The person who took the photo? The person/organisation who owns the rights to the photo? Or the people/organisation which brought it to life (so to speak)?
For example, Steven Wilson’s video for his new single, ‘SELF’ in which he ‘wears’ the faces of everyone from Arnold Schwarzenegger to Tom Cruise to Paul McCartney.
Fortunately, a great report, Artificial Intelligence In The Audiovisual Sector, has a chapter which delves into this issue.
The 200-page document was published by the European Audiovisual Observatory in December 2020 covers everything from what ‘AI’ even is through to the implications of it on freedom of expression, news publishing and cultural diversity.
But it was chapter seven which intrigued me. ‘Personality Rights: From Hollywood To Deepfakes’ by Kelsey Farish, media and technology lawyer in the London office of DAC Beachcroft.
Farish has an easy-to-understand style and quotes both Simon De Beauvoir and Scarlett Johansson.
She describes the current legal situation like a “dimly-lit nightclub, in which the laws concerning intellectual property rights, branding and advertising, reputation management, freedom of speech, emotional distress and consumer protection all dance together, but not necessarily in harmony.”
In other words, the answer to my question about rights get that classic lawyer’s response, ‘it depends’.
And, the things it depends on are broad and varied:
- WHO does the content feature? How famous is the person? Do they have a particularly litigious estate?
- WHAT is it? Does it defame or otherwise malign the person being depicted? Is it merely satirical?
- WHY has it been created? What is the purpose of the content. Is it commercial? Or is it artistic? Could it be covered by freedom of expression provisions?
- WHERE is the content ‘published’? In which jurisdiction?
- WHEN was it published? Is the subject dead? If so, when did they die?
The ‘where’ is particularly relevant as different jurisdictions have quite different approaches to the issue, with regions like the UK and Sweden being at the more weak end of protecting individuals rights, and France, Germany and California at the stronger end — but often for quite different reasons.
“If only one thing is remembered from this chapter, let it be that personality rights require a careful consideration of situational context.”
“A dimly-lit nightclub, in which the laws concerning intellectual property rights, branding and advertising, reputation management, freedom of speech, emotional distress and consumer protection all dance together, but not necessarily in harmony,” Kelsey Farish
And looking to the future she ponders, “if the human eye is unable to discern the difference [between deepfake and actual footage], perhaps the law will likewise cease to distinguish the two, and thus extend rights of personality to cover one’s virtual self.”
If these are issues you’re grappling with, do check out Farish’s full 20-page chapter here. It’s a great introduction to the whole topic.
And if you’d like a longer summary, I’ve also pulled out the relevant points below.
WHAT EXISTING LEGAL PRINCIPLES MIGHT APPLY?
Farish initially looks at four potential angles into the issue, based on existing law:
ANGLE 1: Publicity as (intellectual) property
This first angle is based on the basis that “under the labour theory of property, an individual is entitled to the fruits of his or her own labour”
But unfortunately this falls at an early hurdle. “It is the labour of the photographer or videographer which is protected by copyright, and those rights are often passed directly from the creator to the studio or company producing the film in question. For this reason, a person cannot bring a copyright lawsuit just because he or she is featured in the audiovisual content.”
ANGLE 2: Publicity and brand recognition
So how about the principle of unjust/unjustified enrichment? That, “it is unlawful to unfairly benefit financially from the goodwill or reputation of another… especially… in cases of false or misleading endorsements.”
Farish brings up the case of Topshop which sold a T-shirt which featured a photograph of Rihanna. “Topshop had a proper licence to use the image, but because Rihanna demonstrated that the shirt damaged the attractive magnetism of her personal brand, she successfully sued Topshop for misuse of her publicity.”
This angle may vary by level of fame though. “In some jurisdictions, this brand recognition angle may only be successful for the person who is able to prove the financial damage to his or her publicity. Understandably, this leaves much to be desired for lesser-known figures, or those who cannot prove the monetary value of their persona.”
ANGLE 3: Privacy protections
This angle is based on laws like the European Convention on Human Rights, Article 8, which “grant everyone a fundamental right to privacy, which includes protection against unwanted intrusion into one’s personal space.”
But unfortunately, “privacy laws by no means provide absolute protection for one’s image.’
For one thing, “although privacy is a fundamental human right under the Convention, so too is the right to freedom of expression under Article 10.”
Additionally, “multiple images and videos are often blended together to make a digital double, and determining which if any of those used was initially private could be next to impossible. Secondly, and perhaps more importantly, deepfakes by their very definition depict something that never happened, and fantasy scenarios cannot constitute an invasion of privacy.”
ANGLE 4: Dignity and the neighbouring rights
This last angle is based on the notion that every person has a fundamental right of dignity and personal integrity.
“The Geneva Convention recognises that respect for the personality and dignity of human beings constitutes a universal principle which is binding even in the absence of any contractual undertaking”
These kinds of legal solutions, “centred on dignity, embrace a more holistic understanding of identity. In due course, legal recognition of this facet of personhood may suitably modernise personality rights, and thereby protect people from the harms of misused technologies”
This has already started to be recognised in California, which obviously is the home of a major video and film production industry as well as the talent and personalities that go with it.
“Recognition of non-consensual virtual performances has precedence in California, where courts have compensated individuals for their digital ‘enslavements’ in video games. Musicians in the band No Doubt, for example, successfully sued the makers of Band Hero, a game which allowed players to select highly realistic digital avatars to simulate performing in a rock band.”
“If deepfakes or ghost acting performances are recognised as ‘performances’ under the law, this may protect an individual’s image in cases where he or she has been forced to become a digitised performer against his or her will.”
The future of this area is yet to be written into law. And when it is, “laws concerning brand recognition and reputation will likely be most relevant. Rights to dignity and neighbouring rights may also be applicable, and could potentially offer a more modernised approach to protecting one’s persona.”
But as she points out “in any event, the publicity, privacy and dignity of an individual must be analysed on a case-by-case basis, and will always involve a balancing exercise against the competing rights of others, freedom of expression.”
HOW DO DIFFERENT REGIONS HANDLE THIS ISSUE?
Farish also takes a look at various jurisdictions around the world, to show the range of legal frameworks used to deal with this issue.
GERMANY — stronger protection
“German courts are increasingly willing to defend individuals against unwanted commercial exploitation of their image. Unlike the approach seen in the United Kingdom, prior commercialisation of one’s persona is not expressly a precondition for having a protectable right of publicity.
“In cases where a deceased person is shown, consent from the subject’s relatives is required for a period of 10 years following their death.
“In a judgment concerning photographs of screen star Marlene Dietrich (who had died several years prior) the Federal Court of Justice held that in any unauthorised exploitation of a picture, the owner of the personality right is entitled to compensation irrespective of the gravity of the infringement.”
FRANCE — stronger protection
“French personality rights, which may literally be translated as the rights of (or to) one’s image, include privacy laws which aim to protect a person from unwanted exposure, as well as commercial rights to allow such images to be exploited as a marketable asset… This philosophy is largely rooted in France’s strong protections for one’s privacy or intimate family life.”
“Parody and strictly private use are… exceptions.”
“As this is a perpetual right attached to the individual, it may be passed down to his or her heirs so that they may protect the artist’s performance and memory.”
SWEDEN — weaker protection
“That [Sweden] has no separate personality right as such may… come as a surprise. In stark contrast to Germany and France, personality rights are essentially omitted from Swedish law.”
However, “Sweden’s Act on Names and Pictures in Advertising mandates that consent must be obtained before using someone’s name or picture, or a representation which clearly indicates that specific person, for commercial purposes.
“The Criminal Code also permits family members or the public prosecutor to initiate prosecutions for “disturbing the peace” of the deceased, if doing so is in the public interest (Brottsbalken, Chapter 5 §4).
“These narrow protections aside, the gaps in Sweden’s personality rights legislation are palpable, and judges in Sweden have been largely unwilling to fill them through case law.”
GUERNSEY — stronger protection
“Guernsey established the world’s first statutory registration regime for personality under its Image Rights Ordinance 2012…. Protected images may include photos and pictures of the individual, but also film footage, as well as his or her name, voice, signature, likeness, mannerisms and personal attributes, such as a sports jersey number. Living persons, or persons who have died within 100 years of the application, as well as groups and teams or even fictional characters, may be registered.
“Applicants… may be the individual, or his or her authorised representatives or heirs.
“An infringement occurs if the registered protected image (or one similar to it) is used for a commercial or financial benefit without the proprietor’s consent, and such use either confuses the public or damages the reputation of the person depicted.”
UNITED KINGDOM — weaker protection
“The United Kingdom, like Sweden, does not formally recognise personality rights in its legislation. And unlike many of its counterparts in Europe, English courts have also resisted any temptation to recognise such rights through case law.
“To quote the judgment from Rihanna’s case mentioned above: ‘There is today in England no such thing as a free-standing general right by a famous person (or anyone else) to control the reproduction of their image.’
“Rather… judges in the UK normally prefer to rely on the more traditional legal tools at their disposal. In this sense, there are several ways in which an individual can protect his or her image which typically focus on disclosure of private facts, and harm to one’s business interests or reputation.
“On the relatively rare occasions when privacy matters pertaining to images have come before English courts, judges have tended to favour the protection of free speech and other press freedoms. There are notable exceptions for images which constitute confidential information, or depict children or particularly intimate scenes.
“When protecting one’s publicity as a commercial asset, the most relevant option is often the tort of ‘passing off’, but success will depend on whether the celebrity has ‘a significant reputation or goodwill’ in the first instance.
“The above should be read also in the context of the Copyright, Designs and Patents Act (CDPA)719 which allows a performer in some circumstances ‘to object to derogatory treatment of performance, with any distortion, mutilation or other modification that is prejudicial to the reputation of the performer’.
“Before using a recorded performance, consent must be obtained from the actor, musician, dancer, or other performer in question (CDPA, s. 182).
“This statute was inspired by a case concerning clips featuring the actor Peter Sellers which were used after his death to make a new Pink Panther film. His personal representatives then successfully argued for Sellers’ post-mortem right to prevent the unauthorised use of his performances.”
CALIFORNIA — stronger protection
There is no federal right to privacy in the United States of America, but…
“The California Civil Code (CIV)721 prohibits the unauthorised usage of another’s name, voice, signature, photograph or likeness for advertising purposes without their consent.”
“The Fred Astaire Celebrity Image Protection Act later amended §3344 to protect the commercial use of a deceased individual’s name, image or voice for 70 years post-mortem.
“However, this section applies to merchandise, advertisements, and endorsements only, and exempts fictional and nonfictional entertainment, dramatic, literary, and musical works from liability.
“California courts recognise that the right of a person to be free from unauthorised and unwarranted publicity is an aspect of privacy. Several privacy laws are applicable to the misuse of one’s image, and each is distinguished based on whether the harm is economic or dignitary in nature. False content that injures a person’s reputation may fall under the tort of defamation, and content that is not technically false but nevertheless harms the victim’s mental or emotional well-being may constitute the tort of false light.”
However, “competing free speech protections available through the First Amendment are strong, even for images and videos published by corporations. As a notable example, the actor Dustin Hoffman sued a magazine over a digitally-manipulated image used in a fashion story, which purported to show him dressed in designer clothes. The courts found that as the magazine had no intent to commit harm and the image itself was not purely for commercial reasons, the publisher was entitled to free speech.”
“Importantly for those seeking to alter the appearance of an actor through ghost acting or similar techniques, California uses a transformative work test to determine whether a use of a person’s image is protected by the First Amendment. Under this test, the more a new work ‘transforms’ original footage to provide a different meaning or message, the more likely it is that it will be exempt from copyright protections (Copyright Code, §107).727 With respect to images of individuals in particular, California courts will consider whether the “celebrity’s likeness is so transformed that it has become primarily the defendant’s own expression rather than the celebrity’s likeness.”
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