The Right of Publicity Can Save Actors from Deepfake Armageddon

44 Pages Posted: 24 Sep 2023 Last revised: 25 Sep 2023

Date Written: September 6, 2023

Abstract

The entertainment industry is being rocked by the potential of deepfakes. It is now possible to have dead actors star in new productions, to revise casting choices months after filming, and to simulate extras electronically. The law has not caught up with this technological revolution. This Article traces the ways in which right of publicity law struggles to control this new form of identity exploitation. Specifically, it examines how traditional protections for expressive uses – key for allowing the depiction of real-world figures in biopics and historical dramas – are too broad when applied to digital replicas like deepfakes. A deepfake of a performer can appear to be the performer in a way that no 1990s CGI or makeup-enhanced stunt double possibly could, potentially serving as direct competition for them or deceiving audiences. This Article proposes changes to how right of publicity law treats expressive uses and also considers the problems raised current right of publicity licenses and the overbroad terms they regularly contain. In the past, the problems created by these broad licensing terms were limited by technology – one could only do so much with the film available. But now new canons of interpretation are needed to prevent the contracts being used to justify uses beyond what the contracting parties could have imagined.

Keywords: intellectual property; right of publicity; deepfakes; entertainment law

Suggested Citation

Preminger, Alice and Kugler, Matthew B., The Right of Publicity Can Save Actors from Deepfake Armageddon (September 6, 2023). Berkeley Technology Law Journal, Forthcoming, Northwestern Public Law Research Paper No. 23-52, Available at SSRN: https://ssrn.com/abstract=4563774

Alice Preminger

Northwestern University - Northwestern Pritzker School of Law ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

Matthew B. Kugler (Contact Author)

Northwestern University - Pritzker School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States

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