With actors on strike and deepfakes plaguing the internet, it is clear that AI replicas of real people are here to stay. While this technology certainly has the capability to transform many industries, entrepreneurs must be careful how they use someone else’s likeness in software applications. This is especially true if you use someone’s likeness without their permission.

Companies are now starting to use AI to generate celebrities’ voices and appearances for various purposes, including ads. One such case involves Joe Rogan’s likeness being used to sell male fertility supplements, and many were totally convinced by the AI-generated representation of the podcaster. As regulators step in, we can expect more legal action against this behavior.

Selena Gomez Receives $10-Million Settlement From App that Used Her Likeness

On September 14, Rolling Stone reported that Selena Gomez had won a major court victory against a mobile app company accused of using her likeness without permission. The app in question was “Clothes Forever – Styling Game” – a relatively simple mobile game that involves dressing up celebrities in different outfits. The graphics are by no means realistic, and they seem almost cartoonish. But it is likely that the representations of the celebrities are AI-generated based on real images.

In her lawsuit, Gomez’s attorneys argued that one particular image gained their attention: A clear re-imagining of the singer’s iconic photo that once appeared on the cover of Flare magazine. This, they argued, “creates the false impression that she has endorsed the Game or has something to do with the Game, and undoubtedly is intended to attract consumers to make use of the Game.”

The app also features a host of other celebrities, including Gigi and Bella Hadid, Kendall Jenner, Taylor Swift, Kim Kardashian, and other so-called “style icons.” The app is published by a Chinese company, and as of this writing, the game has been taken offline. The lawsuit indicates not only that companies can be held accountable for using celebrities’ likenesses for financial gain, but also that foreign companies are not immune to this form of legal action.

Celebrities are Currently Fighting a Difficult Battle Against Deepfakes

Selena Gomez is not the only celebrity who has had her likeness used without her permission, and this issue is becoming increasingly prevalent. In May of 2023, a controversy brewed after Tesla appeared to create an AI-generated ad featuring a deepfake of Ryan Reynolds. Later, it was confirmed that this was not an official Tesla ad, but rather a fan-made commercial created by a YouTuber. However, Elon Musk then seemingly endorsed the ad, replying to it on X with a single word: “Nice.” Although nothing more came of the incident, fans of Reynolds repeatedly urged the actor to sue.

In March of 2023, inappropriate images of Emma Watson and Scarlett Johansson appeared on public Facebook and Instagram ads. The advertisements appeared to show off the capabilities of deepfake technology – indicating that users could swap faces with adult actresses with ease. Despite banning deepfake ads in 2020, this one appears to have “slipped through the cracks.”

Many actors are struggling to figure out exactly how to prevent their likeness from being used without their permission, and many observers say that regulation on this issue is far from settled. While Gomez’s settlement should serve as a warning for software companies, others are taking a different approach. For example, Keanu Reeves has adjusted his film contract to include outright bans on AI and deepfake content. In other words, film studios who work with Reeves are not allowed to digitally manipulate footage of him without his permission. He describes the new technology as “scary,” pointing out that it has the potential to end his career. When first encountering this phenomenon, he came to the unsettling conclusion that he “didn’t even have to be here.”

With all this in mind, it should come as no surprise that actors are currently on strike. New technology could in fact create a situation where actors become complete and total digital representations in the future. The studios could afford to have the biggest stars in their pictures while paying little more than an electricity bill for a high-powered computer.

Can Actors Legally Take Action for Deepfake Content?

The Selena Gomez lawsuit shows that actors can in fact take action for having their likeness used without permission. But in other cases, it might not be quite as straightforward. United States copyright law does not protect works created by machines. Therefore, the issue is that celebrities cannot claim AI-generated content as their own. However, actors can theoretically protect this content by filing a copyright application while listing themselves as the “authors.”

The problem is that in many cases where deepfakes have been used, the “fair use” exception applies. This states that if the content is being used for things like commentary, criticism, and news reporting, it cannot be classified as copyright infringement. Most of the cases that can be litigated involve the use of deepfakes for commercial reasons, such as advertising products.

This Issue is Much Older Than Generative AI

It is worth pointing out that while AI presents new concerns in the realm of digital copyright law, this issue is really nothing new. Actors have had their likeness used without their permission since the dawn of the film industry. One notable case involves Crispin Glover, who is known for playing Marty’s father in the Back to the Future series. For the sequel to the first film, the studio elected to use a range of technological and practical tools to recreate his likeness – without actually hiring him for the movie.

This was done without his permission, and Glover successfully sued the studio and received a settlement. The actor’s career suffered after this incident, as he was effectively blacklisted for many years. Nevertheless, it set a precedent – and ever since then, the Screen Actors Guild has explicitly prohibited such blatant copyright infringements.

Where Can I Find a Qualified Tech Lawyer?

Copyright and intellectual property laws have the potential to cause serious consequences for software companies across the globe. As mentioned above many of the issues are not completely novel, but AI creates a context that makes some of the issues more challenging and less strait forward . If you are dealing with these issues, it may be wise to consult with an experienced tech lawyer such as John P. O’Brien. The new wave of AI technology presents all kinds of new issues associated with software law, including using someone’s likeness. To discuss your legal options and determine whether AI might pose issues for your business, speak with us today.