Photo: Larry Costales

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.

https://rm.coe.int/iris-special-2-2020en-artificial-intelligence-in-the-audiovisual-secto/1680a11e0b
https://rm.coe.int/iris-special-2-2020en-artificial-intelligence-in-the-audiovisual-secto/1680a11e0b
  • 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?

“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.”

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”

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.”

Topshop’s offending Rhianna T-shirt

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.”

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.

Band Hero were successfully sued for using No Doubt’s look

In summary

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.”

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.

Marlene Dietrich said, “When you’re dead, you’re dead. That’s it.” But apparently, not according to the German courts

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.”

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.”

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.

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.

Peter Sellers as Inspector Clouseau

CALIFORNIA — stronger protection

There is no federal right to privacy in the United States of America, but…

The Fred Astaire Celebrity Image Protection Act applies for 70 years after death

Consultant, advising AI-powered businesses and those who want to use the power of AI — particularly in the creative industries https://bit.ly/MatthewKershaw

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store