[Guest post] Deepfake it till you make it: How does AI relate to postmortem personality rights?

The IPKat has received and is pleased to host the following contribution by Danish Katfriends Jakob Plesner Mathiasen and Thit Nymand Nisbeth (both Gorrissen Federspiel) on the interplay between AI, deepfakes, and personality rights in the form of image/publicity rights. Here’s what they write:

Deepfake it till you make it: How does AI relate to postmortem personality rights?

by Jakob Plesner Mathiasen and Thit Nymand Nisbeth

Imagine you’re sitting in a movie theater, eagerly awaiting the next blockbuster action film to begin. The lights dim, and the film rolls. Bruce Lee enters the frame, encountering a young Sylvester Stallone as Rocky. Earlier, before the movie started, you watched an advertisement for a soft drink, presented by none other than Marilyn Monroe and James Dean.

Sounds like pure fantasy? Think again. Thanks to artificial intelligence (AI), this future is already here. Deepfake technology has made it possible to bring deceased icons back into the spotlight.

In the AI arena deepfakes as the above are no longer science fiction but fact. Such technology has already made its mark in mainstream entertainment. Carrie Fisher was brought back to life in ‘Star Wars’, and Paul Walker appeared in ‘Fast and Furious 7’ posthumously. These are just a few instances among many. Deepfake voice also made it possible for Iceman, played by the actor Val Kilmer, to return to the screen in the sequel to the blockbuster movie ‘Top Gun’, although Kilmer lost his voice after a throat cancer operation. Even Harrison Ford got a digital facelift in 'Indiana Jones 5: Dial and Destiny', where the technology was used to de-age an 80 year old Harrison Ford, enabling him to portray a much younger Indiana Jones.

AI’s ability to bring the dead back to life causes unprecedented headaches and possibilities for movie producers, advertising agencies, content creators (and their lawyers) when it comes to decqeased persons’ image rights.

Protecting one’s persona

What rights do the heirs have to control and protect the commercial use of the image and persona of the deceased, and what are the consequences if these rights are infringed?

Individual image (also known as publicity) rights are well-established in most jurisdictions and do not pose significant challenges when they are exercised by living persons. Protection is against unauthorized commercial use, such as in advertising. Therefore, creating a deepfake advertisement featuring Taylor Swift without her explicit permission would be a likely infringement of her image rights.

However, when the individual is dead the legal waters get murky. Can the individual exercise their image rights from the grave through that person's heirs, and especially, for how long?

Surprisingly, no specific regulation on deepfakes and image rights exist. Deepfakes in general is included in article 52(3) of the European Commission’s proposal for the Artificial Intelligence Act, requiring transparency towards users of AI systems and disclosure of content that has been artificially generated or manipulated. However, the Act, as it stands, targets only the correlation between the AI systems and the users of those. As of now, the EU regulation lacks clarification as to the rights of the persons depicted in deepfakes – living or dead. Furthermore, EU law does not provide for the harmonisation of image rights, leaving their protection to be regulated solely at national level within the EU.

Supplementary protections exist in personal data laws and criminal legislation, though this is not the focus of the present contribution.

The legal status of a deceased person concerning image rights is not explicitly addressed in international law and only to a limited extent in national legislation. Case law reveals that both the question on recognition and on the duration of postmortem personality rights vary greatly among jurisdictions.

An image right tour

Beginning with the land of opportunity, some U.S. states recognize by statute personality rights, including in particular the right of publicity. For instance, the Indiana Civil Code § 32-36-1-8 (current through P.L. 255-2023) stipulates a prohibition of the use of a person's right of publicity for a commercial purpose during the person's lifetime and for 100 years after their death. However, there is no federal law regarding the matter. Therefore, laws vary state by state.

The legal differences between the U.S. states became evident in a lawsuit from 2011 between a celebrity photographer and Marilyn Monroe’s estate (Greene Archives v. Marilyn Monroe). The key question in the case was whether the movie icon was domiciled in California or New York at the time of her death, as only California recognized at that time postmortem image rights. The court found the domicile to be in New York, thus, to the disappointment of the heirs, the publicity rights followed Monroe to the grave.

In 2010, the Hebrew University of Jerusalem sued General Motors for the unauthorized use of an image of Albert Einstein in a humorous advertisement of a General Motors’ vehicle, depicting the physicist topless (Case no. CV10-03790). The University claimed to have inherited Einstein’s right of publicity and that the right lived on. The District Judge of New Jersey decided the limit of the postmortem right of publicity to last a maximum of 50 years after death, meaning that the rights inherited by the University expired in 2005.

The situation in Denmark and Germany

In Denmark, the general protection of image rights is established by a landmark 1964 decision of the Supreme Court (published in UfR 1965.126 H). The Danish courts have repeatedly confirmed that the protection of image rights continues to exist after the person has passed away. In 2001, the District Court of Copenhagen ruled that the postal distributor Post Danmark could not use the late actor Dirch Passer's image on stamps without obtaining permission from his heirs. Despite Dirch Passer being deceased for 18 years, he had remained widely known due to TV broadcasts, radio shows, and video releases. His copyrights were a significant source of income for his heirs. Given these circumstances, the court found that the heirs had a legitimate interest in how his portrait and its associated values were exploited commercially.

The Danish Supreme Court held in 1990 that it was an infringement of the general legal principles that a bank had used the name of the deceased shipping magnate A.P. Møller in a commercial 22 years after his death without permission (decision published in UfR 1990.65/2 H).

As a final example from Denmark, it was decided by the Maritime and Commercial Court in a 2000 case (published in UfR 2000.2068S) that the heirs of the designer Georg Jensen could prevent the use of Georg Jensen’s signature in commercials and marketing. The court reasoned that although there is no regulation prohibiting the commercial use of a deceased person's signature, the protection of a person's integrity, which includes the signature, is considered to warrant protection against the commercial use of a deceased person's signature. As a result the court granted the deceased Georg Jensen a protection period of 65 years (marking the time from his death to the commercial use of his signature).

While the Danish legal system surely recognizes the existence of postmortem image rights, the duration thereof is yet to be determined with greater certainty. As for now, the Danish courts have recognized a protection period of approximately 65 years.

Turning our focus southward of Denmark, let us examine the legal landscape in Germany. The right to one’s own image is regulated in Section 22 of the German Copyright in Works of Art and Photography Act providing protection of the depicted person against public display without consent until 10 years after the death of the person. This was showcased in 1999 (BGH decision of 1.12.1999 in ZR 49/97), when the German Federal Supreme Court applied the fixed 10 year protection period in a case on damages for the use of image and name of the late German actress Marlene Dietrich.

A longer protection of commercial interests was established in 1989 (BGH decision of 8.6.1989 in ZR 135/87). The court found that postmortem protection of a famous painter continued to exist 30 years after his death. The duration of postmortem protection could not be determined in general, as it depends on the awareness and significance of the personality’s image. According to the German court, the need for protection diminishes over time and thus, personality rights fades at a pace that depends on the significance of the deceased.

Conclusion

Based on the statutes and case law discussed above, it must be concluded that, on the one hand and for the most part, postmortem personality rights, hereunder the right of one’s own image, are generally recognized. On the other hand, the duration of these rights remains less clear.

The German approach, whereby the duration of postmortem rights depends on the significance to the public of the portrayed personality, provides flexibility in an ever-changing world of technology. That said, a clarification in law (similar to post mortem copyrights) would be welcome. The rise of deepfakes had added a new dimension to this debate. It is now easier than ever to recreate deceased individuals in highly realistic ways. Thus, it may be time to advocate for stronger, more explicit legal protections.

While we may “deepfake it till we make it”, one thing remains clear: the legal and ethical considerations surrounding the legacy of the departed call for clarification of the scope and duration of postmortem personality rights and a commitment to uphold the dignity reflected in the digital footprints of those who have passed away.