‘Deepfakes’ of Celebrities Have Begun Appearing in Ads, With or Without Their Permission

‘Deepfakes’ of Celebrities Have Begun Appearing in Ads, With or Without Their Permission

In September of 2022, the media reported that Bruce Willis had “become the first Hollywood star to sell his rights” and “allow US firm Deepcake, which makes ‘digital twins’, to use his face.”[1] Willis was diagnosed with aphasia, a potentially devastating neuro-cognitive disorder that causes a person to lose communication skills.[2] Any such agreement, the existence of which has been disputed by the actor’s representatives, [3] would allow Willis to continue to appear in movies by creating an ultra-realistic 'digital twin.' In fact, one report indicated that Willis’s face was 'grafted' on to understudy Konstantin Solovyov for a commercial for Megafon, a Russian telecommunications company.[4]

The legal issues surrounding the use of a person’s digitized face center around a sub-tort of invasion of privacy called “misappropriation of likeness,” sometimes just referred to as “appropriation.” [5] This is a well-established tort that has been used by celebrities when their faces have appeared on advertisements for products that they have not endorsed.

Appropriation occurs when someone publicly uses the name or likeness of another person, without consent, for his or her own benefit. “Benefit” is broadly defined, but generally refers to using the unauthorized likeness for advertising or to make a commercial profit.[6]

Appropriation analyses are more complex when the plaintiff is a celebrity than when the plaintiff is an ordinary person. The use of a celebrity’s name and likeness has a clear commercial value. Thus, the use can also be considered a violation of intellectual property. Damages on both theories can be calculated based on the value of the use of the likeness or on the illicit gain realized by the defendant due to the appropriation. 

The level of protection of a celebrity’s likeness depends on the jurisdiction. Some jurisdictions have extended protection beyond name and likeness to include other features associated with the plaintiff, such as the plaintiff’s voice, catch phrases, and even habits.

Still, courts must always be mindful of the tension between the First Amendment’s guarantees of freedom of speech and the press and a person’s right to privacy. News reports often use celebrities’ names and images but are not actionable. In the 1938 case, Flake v. Greensboro News Co., a model sued a newspaper after it published an advertisement for a bakery that included an unauthorized picture of her in a bathing suit. The Supreme Court of North Carolina explained:

“In determining to what extent a newspaper may publish the features of an individual under any given circumstances necessarily involves a consideration of the constitutional right of free speech and of a free press. People do not live in seclusion. When a person goes upon the street or highway or into any other public place he exhibits his features to public inspection. Is a newspaper violating any right of the individual, or doing more than exercising the right of a free press, when it publishes a correct image of such features?”

The newspaper had published a public apology when it learned that the picture was unauthorized, and the court ruled that the plaintiff “would be entitled to a judgment for nominal damages only” because the photograph “was used by mistake and without malice and that the defendants immediately desisted from the use … upon the discovery of the mistake and made due apology.”[7]

A more recent example was brought before the Colorado Supreme Court in 2001. In Dickerson v. Dittmar,[8] in the midst of a child custody dispute, the defendant published an article in a newsletter that used the plaintiff’s name and picture, reporting on the plaintiff's conviction for theft. The plaintiff claimed that her privacy was invaded by appropriation of her name and likeness. The court noted that “In the context of invasion of privacy by appropriation of name and likeness, there is a First Amendment privilege that permits the use of a plaintiff's name or likeness when that use is made in the context of, and reasonably relates to, a publication concerning a matter that is newsworthy or of legitimate public concern” and “the defendant's use of the plaintiff's name and likeness in the context of an article related to her crime and conviction is newsworthy and, therefore, privileged.”[9]

The next issue becomes the application of these rules to the use of dynamic digitized images. The World Intellectual Property Organization, in its paper on Intellectual Property Policy And Artificial Intelligence, examined the issue of deepfake contents. It suggested that deepfakes are subject to copyright and that the copyrights belong to the inventor of the deepfakes.[10] Based on this paper, the Institute for Internet & Just Society concluded that “copyright is not a good weapon to be put against deepfake, as the victim of deepfakes does not own a copyright interest in their own image. On the other side, the victim of deepfake can take to the right of personal data protection.”[11]

In May of 2022, rapper Kendrick Lamar released a music video employing Deepfake technology.

He opens with the line, “As I get a little older, I realize life is perspective” and the video shows him “morphing” into Will Smith, Jussie Smollett, O.J. Simpson, Kobe Bryant and Nipsey Hussle to talk about issues from the perspectives of the people he morphs into.[12] Because there are currently no copyright laws designed to combat deepfake usage, the current state of the law permits under the “fair use” exception to copyright infringement when a work employs “transformative use” – the altering of a copyrighted work to create something with a novel message or meaning.[13] Copyright attorney Alan Friedman, a partner at Fox Rothschild, recently noted that the deepfakes in the video appear “highly transformative” and that “fair use would be a strong defense to a copyright challenge.”[14]

In the United States, there has been a recent flurry of state and federal legislation that aims to better understand the creation of doctored video and audio files and to help victims react to unauthorized use of their own images. [15] As an expert told the U.S House Intelligence Committee in 2019: “I think there is going to be a point where we can throw absolutely everything that we have at this, at these types of techniques, and there is still some question about whether it is authentic or not.”[16] As such, most of the federal legislative efforts have focused on research into understanding deepfake technologies.[17] On the state side, state-level legislation passed in response to deepfake technologies have been more attentive on providing recourse to victims, such as with victims of pornographic instances of deepfakes, or candidates for political office who are the victims of deepfakes depicting them that emerge before elections.”[18]

So back to Bruce: if he considers suing the company for unauthorized use of his image for the Deepfake commercial, he may be able to argue that the commercial was not transformative enough to qualify under the fair use copyright exception, since the commercial uses his image in order to replicate the feel of his signature “Die Hard” type of character roles. His strongest legal theory would probably be the classic tort of misappropriation of his likeness, as the commercial used his image in order to make a commercial profit.[19]