Deepfakes Pose Increasing Legal and Ethical Issues for Hollywood

"On June 19, New York wrapped up a historic legislative session. With Democrats now fully in power in the state, lawmakers passed some 300 bills, including a huge extension of rent control rules and the elimination of cash bail. But one thing ended up on the sidelines without a vote — a massive overhaul of New York’s laws governing publicity and privacy rights. The proposed legislation would have, among other things, barred the unauthorized “use of a digital replica to create sexually explicit material in an expressive audiovisual work,” extended the protection of one’s likeness past death, and even created a registry whereby the heirs of famous people could document their official control over their dead relative’s name and image.

The legislative discussion is happening at a time when concerns over so-called “deepfakes” — hyper-realistic manipulation of digital imagery that can alter images so effectively it’s largely impossible to tell real from fake — are rising in both Washington, D.C., and Hollywood. In the political world, the potential to use the technology to disseminate false information or, at least, muddy the waters about objective reality are akin to the debate over the impact of fake news (while not technically a deepfake, a recent heavily edited video of Speaker of the House Nancy Pelosi appearing to slur her words was seen as an ominous precursor to what kind of damage digitally altered video can do). In entertainment, the debate so far has largely revolved around issues of privacy and free speech.

So it’s not just exploitation. Digital technology also puts jobs at risk.

But, as Bennett acknowledges, if Heath Ledger’s heirs were bequeathed his right of publicity in a will and then licensed it to Disney so a deepfake version of Ledger could play Jack Sparrow, that would be totally fine by law.

In fact, right now, there are only a few A-list actors in Hollywood, and the biggest reason they are not in every film is limitations on their time. But if the technology developments enable them to simply license their name, image and voice and not really spend any time actually on set, wouldn’t that potentially take away jobs? All the roles just might go to Dwayne Johnson and Jennifer Lawrence.

“Sure, that could be an issue,” Bennett responds. “We just want to make sure our performer is the one who gets to say ‘yes’ or ‘no.’ Without a right of publicity, they don’t even have the right to stop it from happening.” "

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