Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, October 6, 2023

Preminger and Kugler on How the Right of Publicity Can Save Actors From Deepfake Arnageddon @MBKugler @NorthwesternLaw @BerkeleyTechLJ

Alice Preminger and Matthew B. Kugler, both of the Northwestern School of Law, are publishing The Right of Publicity Can Save Actors from Deepfake Armageddon in the Berkeley Technology Law Journal. Here is the 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.

Download the article from SSRN at the link.

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