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
