Category: Art

On the Use of AI Likeness in Motion Pictures

In my book, published in 2020, I speculated about a biopic made with an AI-generated likeness of Carrie Fisher; and this week, Variety reports that a motion picture about Edith Piaf is now in development that will use AI-generated likenesses of the famed torch singer. So, now that the hypothetical is reality, what are the considerations beyond the obvious loss of job opportunities for performers to play these roles?

One possibility, of course, is that audiences won’t respond well to this approach to biopic. Part of the appeal of the genre is watching a skilled actor play an important, beloved, or even detested figure. I can only speculate about what would be lost if, for instance, the motion picture Ray did not feature Jamie Foxx becoming Mr. Charles, but my instinct is that the overall experience for the viewer would be diluted. This is not to say that new forms of expression will not emerge from experimenting with AI likenesses (e.g., CGI already features in reenactment sequences for documentary projects), but these are aesthetic and market considerations. What about the ethical or legal questions?

Mostly Not a Copyright Matter

To begin, the right to dramatize a real person’s story in a motion picture is not necessarily a copyright matter. Copyright applies if, for instance, biographical material has already been written (or otherwise recorded) because copyright only attaches to a work fixed in a tangible medium of expression. So, if a film is based substantially on a single biographical book about Edith Piaf, then the film is arguably a “derivative work” of the book, and the book’s author reserves the right to allow production of the film. That said, facts are not protected by copyright law (i.e., many authors can write biographies about the same figure), and a biopic can be produced based on an original screenplay encompassing the writers’ own research into the subject.

Rights of Publicity

I mention all that to distinguish copyright rights from what are often referred to as “life rights,” a broad, industry term that is often viewed as adjacent to state law rights of publicity (ROP). Importantly, though, ROP entails use of a likeness, which does not cover use of biographical information for the purpose of portraying a real person as a character. While it is often wise (and courteous) to obtain permission to use part or all of someone’s story in a motion picture, individuals do not have absolute control over such portrayals, especially if they are public figures and the depictions are based on an available record. If the law held otherwise, the Trump family could, for instance, exert control over all dramatizations of The Donald, and any future biopics would basically be remakes of The Greatest Story Ever Told.

Of course, there are certain limits. Although the bar for defamation or libel can be high, a motion picture portrayal of a real person can trigger a valid claim of this nature, and it is interesting to ask whether these considerations may be different when the producer uses an AI-generated likeness to perform a potentially damaging scene. Biopics often interpolate the narrative by producing scenes or dialogue that are plausible but not necessarily factual. In this context, then, might the additional step toward “reality” with the use of an AI-generated likeness of the subject alter the burden on the producer to adhere more faithfully to the record?

ROP laws vary state-by-state, and are statutory in half the states, but nowhere do they apply to an expressive use of a likeness in contrast to a commercial advertising use. You might have read that Scarlett Johansson is suing app developer Lisa AI for use of her generated likeness in a social media ad posted on X. Variety describes the facts thus:

The ad, reviewed by Variety, begins with an old clip of Johansson behind the scenes of Marvel’s “Black Widow.” Johansson says, “What’s up guys? It’s Scarlett and I want you to come with me…” before a graphic covers her mouth and the screen transitions into AI-generated photos that resemble the actor. A fake voice imitating Johansson then continues speaking, promoting the AI app. “It’s not limited to avatars only. You can also create images with texts and even your AI videos. I think you shouldn’t miss it,” says a voice that sounds like Johansson.

Based on that description, this sounds like a textbook violation of Johansson’s ROP, using her likeness for the purpose of advertising, and there could also be a violation of Disney’s copyright for use of the Black Widow clip. This is not the first story of its kind to emerge concurrent with recent advances in AI, and I believe that companies using celebrity likenesses in this way should face damage awards and injunctions sufficient to achieve deterrence. If Johansson et al. do not seek punitive outcomes in these cases, then the violation and litigation can become promotional opportunities for the infringing companies—a strategy right out of the Silicon Valley playbook:  infringe now, apologize(ish) later, and reap the publicity benefits of the violation.

Likeness as Individual vs. Likeness as Performer

Because Johansson is a real person and an actress, it’s important to distinguish between her AI-generated likeness as herself and her AI-generated likeness as a character in a motion picture. As mentioned, ROP is neither federal law nor (as it stands) applicable to the use of Johansson’s likeness 30 years from now in a biopic about her. Regarding her likeness as a performer, the SAG-AFTRA agreement with the producers appears to strike a balance for now—namely that filmmakers retain some latitude for the use of generative AI replicas, but they cannot willfully “cast” performers in motion pictures by means of AI replication without permission or compensation. We shall see how things play out for lesser-known and background performers going forward, but for the time being, we won’t see Johansson’s AI avatar playing any roles without her permission.

And that brings us back to projects like the Piaf biopic. While there is no legal barrier, at least in U.S. law, to prohibit the use of AI likenesses of real people for expressive purposes, a film like the Piaf project implies a challenge for the future negotiating power of performers, if audiences demonstrate that they enjoy motion pictures without flesh-and-blood actors. This is, of course, the anxious question on the mind of every performing and creative artist since the explosion of AI over the last couple of years. Will the machines replace us all? Will the motion picture industry, for instance, be reduced to a few hundred computer programmers, ten executives, and a couple of social media gurus?

I tend to doubt that such bleak outcomes are likely. Even without new legal frameworks, I expect some of the frenzy over certain creative uses of AI will settle down as producers discover ways to enhance, rather than overwrite, the fundamental magic that makes an expressive work like a motion picture engaging for viewers. That may be wishful thinking, of course. I suppose it’s possible that the future will comprise a world of AI performers with artificial biographies, which will then be dramatized by subsequent generations of AI performers. At that point, though, I imagine the “audience” will also be AIs that “woke up” and wiped us all out. So, it won’t be our problem.

Photo by: Artyme83

AIs Don’t Learn Jack Shit About Art

While people may continue to debate whether robots dream of electric sheep, let us please stop entertaining the notion that AIs “learn from artistic works the same way human artists learn” to make art. In a recent article solidly arguing that Big Tech is going to win again for exploiting creators to develop AI, Peter Csathy concludes:

For those of you who push back and argue that humans “train” on pre-existing copyrighted works all the time when they create works inspired by (or even “in the style of”) of others, let’s be clear. They typically aren’t plagiarizing or making actual copies. But generative AI is when it “scrapes” each and every word.

Csathy is right, of course, but even his counterargument still accepts the premise of the analogy. And that’s part of the problem. Because the analogy is dumb and should be rejected as dumb, or at least useless in the broader discussion about machine learning and generative AI. The comparison of AI “training” to human artistic “training” fosters a legal, moral, and cultural equivalency that should be dismissed with prejudice, if only because whatever we call the product of generative AI, it ain’t art.

A child finds a shell on the beach she thinks is pretty. She takes the shell home, cleans it off, and places it on a nightstand or other surface to decorate her room. The shell is fun to look at, and its texture, shape, and color inspire the child to hold it in her hand, study it for long periods of time, and perhaps even make new discoveries about it. The shell shares many qualities with art, but it is not art for the simple fact that no human made the object. Likewise, autonomously, AI-generated works are just pretty sea shells on the beach.

The essential anthropic contribution to artistic expression is not merely a doctrinal principle of copyright law (i.e., one cannot own rights in the “works” of nature), but it is axiomatic to the nature of art as both practice and experience. Whether good or bad, high or low, decorative or provocative, commercial or non-commercial, art, by definition, is made by humans. In fact, it is the only enterprise I can think of—other than religion—that entails an instinct or acceptance that something ineffable and profound is inherent.

Art is talismanic much like an autograph, rare book, or historic artifact. The value of an original Van Gogh is not merely underwritten by its uniqueness but by a metaphysical—perhaps even spiritual—sense that the canvas, paint, and expression are all imbued with eidolons of the artist and his place in the human continuum. The instinct to perceive meaning in objects or to form personal relationships with works of expression may be ineffable, but the phenomenon cannot be denied any more than the element of faith can rationally be stripped from religious ritual. With a little practice, I could correctly perform a religious rite, but because I’m an atheist, it would be a meaningless act. An observer might not know, but I would, and so (according to the faithful) would God. Likewise, “art” without the undefinable ingredient (call it what you will) is as empty as a prayer without faith.

Whether readers agree with any of this, perhaps it is enough to simply understand that artists do not merely “learn” to make art by studying the mechanics of prior art. Yes, that is often part of the artist’s education but not necessarily the most important part. And many artists are autodidacts without any kind of formal training. But whatever training, methods, or media may be cited to describe the journey toward art-making, what the artist fundamentally does is synthesize experience into expressive works that both comment upon and alter human experience. And since AI’s can’t have human experience, they really can’t learn shit about art.

Image source by: ipopba

Is Congress Protecting Big Radio and Forgetting Musicians—Again?

Cars and music are so symbiotic that many contemporary vehicles could be mistaken for high-tech sound systems that also happen to take us places. I remember when popular music was only available on AM radio stations, and we’d listen to Steve Miller or Wings or the Jackson 5 playing through tiny, sibilant speakers mounted in the center of the dashboard. Those days are LONG gone, of course, and although AM radio is a relic as a music platform, musical artists might want to tune into the legislative progress of the AM Radio in Every Vehicle Act because it just might leave them hitchhiking on a lonely highway. Again.

Introduced in May by Senator Edward Markey, along with an identical bill in the House sponsored by Representative Josh Gottheimer, the AM Radio legislation was presumably drafted at the request of the major broadcasters seeking to extend the lifespan of terrestrial radio in a market increasingly dominated by digital options. Specifically, the bills are a response to auto manufacturers who have discontinued, or plan to discontinue, production of new vehicle sound systems capable of receiving AM signals. Likewise, makers of electric vehicles (EVs) have shunned AM because the powertrains cause electromagnetic interference at those frequencies.

More broadly, Autoweek, in November 2022, stated, “Auto companies consider deep-sixing radio for the same reason they ditched the CD player—it costs money and takes up space and resources on the valuable digital dashboard.” While some automakers testified in hearings that Congress should not dictate their product decisions in a changing market, others have since agreed to keep AM radio for now. Admittedly, it does seem as though forcing auto manufacturers to carry the AM signal in all cars in 2023 is a bit like requiring computers to still come with floppy drives.

Meanwhile, it is not hard to imagine how today’s AM Radio mandate, if passed, could serve as a precedent for an FM requirement in the future. And this would be acutely relevant to musical artists because it would extend the lifespan of terrestrial music broadcast, for which performers receive no royalties.

Section 106(6) of the Copyright Act protects the right to publicly perform sound recordings by digital transmission only, and recording artists have been trying for decades to amend the law to include terrestrial radio, arguing that they have long deserved a share of ad revenue earned by stations playing their music. Every time the issue has come before Congress, lawmakers have sided with the broadcasters, but in June 2021, the American Music Fairness Act (AMFA) came closer to gaining approval than the broadcasters might have expected. Reps. Ted Deutch and Darrell Issa stood on Capitol Hill among a group of performing artists, including Dionne Warwick and Sam Moore, to announce AMFA, and as Rep. Issa told reporters that day, the longstanding rule of “not one penny” is a bad faith arrangement that needs to be made right.

The United States is unique among major markets for its failure to pay royalties to musical artists for traditional (terrestrial) radio play, and this despite billions in ad revenue that simply would not exist without the music. Additionally, because U.S. radio does not pay royalties to any artists, American performers are typically excluded from royalty opportunities in foreign markets as well as at home. Thus, it could feel like an all too familiar gut punch if Congress were to swiftly pass AM Radio in Every Vehicle without passing the American Music Fairness Act (AMFA) at the same time.  

Although terrestrial radio may be shrinking—slowly crossfading to digital platforms—there is clearly enough terrestrial broadcast that iHeart, Cumulus, et al. are willing to fight the passage of AMFA to avoid paying musical artists a fraction of their billions in annual ad revenue. And as if it were not obvious that the local radio station is as rare today as the local newspaper, NAB does not hesitate to play the small-station victim card in opposition to Music Fairness. In a December 2022 statement thanking House committee members for voting against AMFA, NAB writes:

The American Music Fairness Act would mandate a new performance royalty on free, local radio stations that would jeopardize local jobs, prevent new artists from breaking into the recording business and harm the hundreds of millions of Americans who rely on local radio.

Of course, NAB omits the fact that AMFA establishes fees as low as $10/year for truly small operators, just as they omit the fact that, for instance, over 800 “small” stations in the U.S. are owned by one mega-corporation called iHeart. As for “preventing new artists from breaking in,” that’s a specious claim. Music is the only reason anyone tunes into certain radio stations, and if a station fails to play what someone wants to hear, the station will lose the listener not the artist. Because in case National Association of Broadcasters missed the memo, music discovery for the two youngest generations happens on a whole bunch of platforms that ain’t radio. 

In a September 7 statement, NAB praised the 150 House cosponsors of the AM Radio bill, stating, “The incredible bipartisan support the AM Radio for Every Vehicle Act has garnered in just a short time is a testament to the integral role AM broadcasting plays in informing, entertaining and connecting Americans across the country.” Perhaps. But frankly, the bills offer so much political cover—from playing a role in the Emergency Alert System to allegedly protecting conservative talk shows—that it’s possible few Americans will care whether Congress may be handing a gift to Big Radio.

But if AM Radio in Every Vehicle does become law, it will be hard to ignore the faint aroma of protectionism for an industry that needs no protection. Meanwhile, the musical artists, including background performers you’ve heard but never heard of, could use a little support from their representatives and finally receive a fair share of revenue from the market they made possible in the first place. If Congress is determined to suddenly mandate more terrestrial radio in vehicles, then it should also decide to finally protect the musicians who are often the only reason we enjoy the ride.  

Photo by: CelsoDiniz