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Whenever a big debate comes up over an individual’s likeness rights, one can expect Hollywood studios and the industry’s performers to offer different visions about what’s at stake — free expression or unfettered exploitation. Thus, it’s no surprise that a bill currently before the New York legislature establishing a right of publicity for living and deceased individuals is drawing praise and fire from the usual suspects.
In a series of letters and memorandum issued last week, Disney, NBCUniversal, Viacom, Warner Bros. and many others in the entertainment and media industry are coming out against New York Assembly Bill A.8155B.
The studios spotlight award-winning biopics and warn that without exceptions for expressive works, New York’s proposed bill may inhibit their ability to tell stories of real-life individuals and events. Nonsense, responds Screen Actors Guild?American Federation of Television and Radio Artists (SAG-AFTRA), saying that producers will still have the broad protections of the First Amendment at their disposal. (Much to SAG-AFTRA’s chagrin, FX’s recent appellate win against Olivia de Havilland may provide some confirmation.)
However, this story isn’t meant to offer competing interpretations about the pros and cons of publicity right statutes, nor settle who is on higher moral ground. Both sides are probably guilty of overreaching. For instance, SAG-AFTRA says that without a right of publicity, performers and their heirs would have no law on the books to protect them. But that ignores the Lanham Act’s prohibitions on false advertisement and trademark infringement, unfair competition laws, privacy statutes and on and on. Plus, few object to a right of publicity in principle. It’s all about how the statute is crafted. Who gets rights? How can rights be transferred? How are rights and limitations defined?
What’s different this time perhaps is the extent to which New York lawmakers are attempting to deal with more novel technologies — from celebrity holograms to “deep fakes,” the latter being the term of art for when artificial intelligence helps swap a person’s face onto another’s body, often for pornographic purposes. The bill talks about the illegal use of a “digital replica,” including this way: “Use of a digital replica of an individual shall constitute a violation if done without the consent of the individual if the use is in an audiovisual pornographic work in a manner that is intended to create and that does create the impression that the individual represented by the digital replica is performing.”
This looks to be the first time that a state is explicitly taking action against the “deep fake” scourge, and if lawmakers, encouraged by SAG-AFTRA, hoped that doing so would stop Hollywood studios from daring to complain — boy, were they were wrong. Not only do studios take aim at the larger contours of New York’s right of publicity bill, these studios are willing to risk head-turning headlines by objecting to the particular “deep fakes” provision.
As Lisa Pitney, vp government relations at The Walt Disney Company, writes, “[T]he bill would create entirely unprecedented rights to control the use of ‘digital replicas’ and the use of celebrity images in sexually explicit material, which while presumably well-intended threaten expressive activities as a result of undefined, vague or otherwise problematic statutory language.”
“NBCUniversal respectfully disagrees that there is an actual pressing problem involving unauthorized ‘digital replicas’ of people that warrants rushed legislative intervention,” states that company’s memorandum.
“While MPAA agrees that the emerging ‘deepfake’ problem deserves attention, the hastily-drafted provision in the Bill would result in unintended, harmful consequences and is likely unconstitutional,” adds the MPAA memorandum. “The provision governs uses in ‘pornographic work[s],’ but the Bill does not define that term, which is extremely vague and lacks any accepted legal meaning. Also, there are no exceptions or limitations in the Bill that would exempt uses in clearly First Amendment-protected contexts including news reporting, commentary, and analysis.”
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