Tag: likeness

No FAKES Act Matched in House Bill to Address Gen AI Replication

no fakes

On Monday, beloved actor James Earl Jones passed away at age 93, but in 2022, he signed an agreement with LucasFilms to allow the voice of Darth Vader to live on through Gen AI replication. Jones’s permission to replicate his voice is a bittersweet prelude to today’s news from Capitol Hill, where the House of Representatives introduced its own No FAKES Act to prohibit the unlicensed replication of any person’s likeness or voice. Sponsored by Reps. Salazar, Dean, Moran, Morelle, and Wittman, the House bill is identical to the Senate No FAKES Act introduced in late July and, so, demonstrates a bicameral, as well as bipartisan, sense of urgency to address misuse of Gen AI for this purpose.

To recap, No FAKES establishes a new property right in the likeness of any person and prohibits unauthorized replication of a likeness, which includes voice. Historically, likeness has only been protected on a limited basis by a patchwork of state Right of Publicity (ROP) laws, typically prohibiting unauthorized use of a celebrity likeness for commercial/advertising purposes. But the unprecedented capability of Gen AI to be used by anyone to replicate the likeness of anyone—and which will exacerbate the reality-bending world of online “information”—has prompted Congress to move swiftly and, in my view, creatively.

It was July 2023 when the idea of a federal ROP law was discussed during a hearing held by the House Judiciary Committee Subcommittee on Intellectual Property. At the time, I imagined this was a prelude to years of haggling on Capitol Hill while Gen AI developers proceeded at internet speed to wreak havoc with tools to produce more advanced “deepfakes.” Instead, the introduction of No FAKES in the Senate just one year later—and now, the same bill in the House less than two months after that—reveals both seriousness and deftness in legislators’ zeal to confront the issue. Rather than approach the matter as one to be remedied by a federal ROP law, Congress, with input from various stakeholders, has responded to the novelty of the challenge with novel legislation, drawing upon principles found in ROP, trademark, and copyright law.

If passed, No FAKES would operate akin to ROP, but it automatically applies to every citizen, and unlawful replication is not limited to commercial/advertising purposes. At the same time, because many misuses of Gen AI replication have both reputational and commercial implications, No FAKES shares a kinship with trademark, which is a creature of the Commerce clause. And finally, the new right is copyright-like as a property right which vests in the individual, may be licensed for various uses, and is descendible to heirs and assigns with certain limits and conditions unique to protecting likeness.

Opposition Is Familiar but the Battlefield Is Different

Many of the usual suspects representing Big Tech, including the newly formed (I can’t believe they called it this) Chamber of Progress, will likely raise constitutional challenges to No FAKES, leaning hard into the refrain that the new likeness right will chill protected speech. As to the merits of that argument, the text of the bill already includes well-crafted, First Amendment-based exceptions; and as a PR message, I believe Big Tech is refreshingly at a disadvantage. Concerns over abuse of Gen AI encompass a broad range of Americans—from professional creators to parents seeing how easily children can be sexually exploited—and in general, people just aren’t buying Big Tech’s “make life better” rhetoric anymore.

Examples of legitimate innovation (e.g., Jones permitting Darth Vader to continue, or Randy Travis overcoming physical voice loss) will entail permission of the person whose likeness or voice is being replicated. Yet, in response to the many harms which may be caused by unlicensed Gen AI replication, AI defenders will promote the overbroad refrain that “innovation” must be allowed to flourish — but of course, “innovation” is Big Tech’s euphemism for “profitability at any cost.” Congress is still playing catch-up to address myriad harms fostered by pre-AI social media and is, therefore, reluctant to repeat the mistakes of the late 1990s by allowing Gen AI “room to grow” without restrictions.

Interestingly, Chamber of Progress appears designed to frame the multi-billion-dollar AI gamble as socially and politically “progressive,” a strategy belied by its advocating broad liability shields for AI developers akin to Section 230 of the CDA and Section 512 of the DMCA. In fact, that view aligns perfectly with Open AI CEO Sam Altman suggesting that it is impossible to develop without free use of copyrighted works, or with investor Marc Andreesen writing a smug and erroneous manifesto as a plea for continued laissez-faire policy in all things tech. If there is anything “progressive” about Gen AI, Chamber of Progress will need to produce more than worn out rhetoric to prove it.

We’ve been here and done this, but No FAKES is a bill with a lot of political momentum. The likelihood that many citizens will oppose a prohibition on the unlicensed use of their own, or their children’s, likenesses seems low to the point of futility. We’ll see what comes, but by my lights, No FAKES is destined to become law.

Image by: nikolay100

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