Last week it was widely reported that actor Bruce Willis had sold the rights to his appearance to an AI video production company Deepcake, a firm who make “digital twins” of celebrities for use in films and advertising. While a spokesperson for Willis later denied any sale of his rights, he did give permission last year for his deepfake to be used by the firm to create a Russian language advert. The technology has seen significant recent use, with parody deepfake impersonations of actors Tom Cruise and Keanu Reeves being viewed millions of times on social media. So what are deepfakes, and can how can celebrities control and monetise the use of their deepfake doppelgängers?
What are deepfakes?
Deepfakes are a form of synthetic media, in which a person’s face, body or voice is digitally edited so they appear to be someone (or somewhere) else. Deepfakes are created using a form of artificial intelligence called deep learning. Their use has grown in recent years as the technology behind their creation has improved and as the computing power and software required for their creation have become more accessible to the public.
How might deepfakes be used?
Deepfakes have a range of legitimate uses, including in education by bringing historical figures to life in the classroom and in expanding access to worldwide audiences through content localisation. For example, the technology was used by David Beckham to speak in nine languages in a public awareness campaign to end Malaria. Deepfake technology could be used to allow famous actors to license their digital appearance rather than face the time and cost of appearing on set, or to deliver dialog in an unknown foreign language.
As Leonie Sheridan has written about previously on the Lewis Silkin Sports Insights blog, there are however significant risks that the technology could be misused including cybercrime, fraud, harassment and image-based sexual abuse. In July this year the Law Commission proposed new criminal offences concerning the sharing of intimate images without consent, which would extend to the sharing of intimate images made or altered through deepfake technology. Pending any law reform, where deepfake technology has been used to replicate a celebrity in a compromising situation without their consent they may be able to rely on defamation or malicious falsehood actions for protection against the deepfake producer.
Can celebrities prevent unauthorised commercial deepfakes?
The UK does not have any specific consolidated legislation on deepfakes or a free-standing general right for a famous person to control the reproduction of their image. Instead, under English law an aggrieved celebrity seeking to prevent an unauthorised deepfake will have to piece together protection from a patchwork of laws, including passing off, defamation, copyright and data protection. For example, passing off can be used be celebrities with significant reputation or goodwill in their likeness to prevent their image being used without permission to endorse or advertise a particular product. They may be able to rely on defamation law where their likeness used without permission in a way that is misleading or may bring them into dispute and is likely to cause serious harm to their reputation. The creation of deepfake videos may infringe the copyright in the original films or television shows featuring the actor, and the law provides a right for a performer to object to a distortion or modification of their performance. Data protection rules allow individuals to control personal data about themselves, which may include deepfake video or images made of them. The application of these laws to deepfakes is however as yet untested in the UK and there are challenges or uncertainties in applying them to deepfake technology.
The future of deepfake licensing deals
While the rumours of Willis’ deepfake deal turned out to be baseless, there is a developing market for deepfake licensing. For example, this year 91-year-old actor James Earl Jones retired from his role providing the iconic voice of Star Wars character Darth Vader, and signed an agreement allowing an AI firm to create a synthetic deepfake voice for use in future Star Wars content.
The growth in licensing such deepfake performances is not without controversy, with the UK performers and entertainment professionals’ union Equity launching a campaign around the use of deepfake technology and calling on the government to modernise the law. According to Equity, 65% of surveyed performers were concerned that the development of AI technology posed a threat to employment opportunities in the performing arts sector.
Actors and celebrities looking to enter deepfake licensing arrangements will face many similar legal considerations relevant to other endorsement or celebrity image exploitation deals, such as addressing the structure of payments, the term and the territorial scope of any agreement. A major consideration for deepfake licensing will be the degree of control the celebrity will have over the ways in which their likeness is permitted to be used, reused and contractual protections against the licensee using the celebrity deepfake in offensive content. Careful drafting will be necessary to ensure that the actors’ appearance is not used in a manner detrimental to their reputation.