How Does Deepfake Technology Work in Ads and Entertainment?

This week, on January 26, British broadcaster ITV is launching a TV show on its streaming platform ITVX that will feature celebrities living in a community as neighbors, getting into petty disputes and creating some unlikely pop culture interactions. However, don’t be fooled! Although the stars of the show initially appeared to be some of the biggest celebrities around – for example, rapper Stormzy, footballer Harry Kane and actor Tom Holland – they are not real. In reality, the “celebrities” are portrayed by impressionists using “deepfake” technology – a type of digital mask that uses AI to replace someone’s appearance with someone else’s likeness.

Produced by Tiger Aspect in association with synthetic media company StudioNeural, the six-episode series ‘Deep Fake Neighbor Wars’ is the world’s first long-form narrative show to use deepfake technology. But this isn’t the first time we’ve seen this fast-growing technology deployed in the entertainment and commercial worlds. In 2021, an AI-powered content creation platform called Deepcake teamed up with Russian telecom company Megafon to create an ad campaign featuring Bruce Willis – allowing the action hero to turn back the years despite his deteriorating condition using a ” digital twin”. of the real actor.

Each episode of “Deep Fake Neighbor Wars” will begin with a disclaimer, and judging by a recent interview with the British newspaper The Guardian, the creators are not worried about any legal implications of the series using celebrity likenesses. However, as with all groundbreaking ideas, the concept can raise some questions when it operates in a space without much legal or ethical precedent – especially on a mainstream media platform like ITVX. So what are the global, legal precedents surrounding this new technology? And what does it mean for its possible use in the commercial industry – a la Bruce Willis? We spoke with Ron Moscona, Partner, and Ryan Meyer, Of ​​Counsel, at international law firm Dorsey & Whitney—specialists in intellectual property and technology law—to find out.

Based in London, Ron’s practice focuses on the long-term commercial interests of his clients, helping them to make the most of their technology, intellectual property and brands. Discussing ITV’s new deepfake show, he says there are “clearly legal concerns” that require extra attention from the production team, “This kind of show definitely tests the limits. It should be made absolutely clear that the deeply fake images are not real and also that the show is not sponsored or endorsed by the people depicted.” He continues, “This is usually not a problem if the comedy is clearly making fun of celebrities through parody or pastiche. However, deepfake technology – especially if it is of high quality – clearly increases the risk that people will end up on the wrong end of the stick.”

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A secondary concern he highlights is the second life this deepfake content could have on social media after the initial broadcast. Clips of the show could be shared without context to a wider audience online, making it harder for people to determine whether the material is real or celebrity-endorsed. “It would make sense for the production to use the images in a way that minimizes the risk of the images being reused and circulated out of context,” he adds. “Like any comedy show, there are risks of claims of bad taste, invasion of privacy or even defamation (defamation). But since the show makes it very clear that these aren’t real people, or that real people didn’t approve, and that the idea is to make fun of them, free speech principles should protect the show from liability.”

LBB recently explored the legal POV on AI-generated art with Ryan Meyer – discovering that the law can often take a long time to catch up with new, developing technologies. So how up-to-date is the law when it comes to deepfakes? Ryan, who specializes in US intellectual property law, explains that many aspects of the technology are already covered by existing law – even though it is still “a relative novelty”. It says, “A person could be liable for using deepfake technology to violate another entity’s intellectual property rights or a person’s rights of publicity or privacy. And the technology itself can be protected by intellectual property rights. Malicious use of deepfakes could also constitute fraud, defamation, identity theft and other civil and criminal violations.”

However, according to Ryan, there are only a handful of jurisdictions in the US that have laws specifically related to deepfake technology — mostly when it comes to pornography and election fraud. Agreeing with his colleague across the pond, he also reiterates the risk of a second life that deepfake material can have once it circulates online – outside the control of its creator and beyond local legal jurisdiction.

“Thanks to the Internet, state and national borders are notoriously permeable to video and other media, and what’s legal in one jurisdiction may be illegal in another,” he says. “Even if someone creates a deepfake for innocent purposes and with clear disclaimers, once it’s out in the world, they can’t control where it goes, how many people see it, or how many of those people will be tricked into believing it’s real.” He continues, “ Perhaps most importantly, they cannot control the damage done to the real, original person as a result of the deepfake. seek to block malicious deepfakes.”

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So how can one protect their image from deepfakes? Ron shares that while there is no copyright to a person’s image, a celebrity can control the exploitation of their likeness through other legal concepts. “You can protect the right to commercialize your image (your name or visual ‘likeness’) only if you can show that your image is recognizable and has some commercial value, or that you are already exploiting it,” he says. “In the UK, you can stop someone exploiting your image commercially without your permission under the ‘law of transmission’ if you can show that you have gained ‘goodwill’ (commercial value) in your name or that the exploitation of without Your permission will “deceive” the public into believing that you “authorized” or “sanctioned” the commercial exploitation”.

Other jurisdictions take this a step further and entitle people to reap all the benefits of the value created by their name or image, says Ron, but in the UK, the law still requires a person to have commercialized his own image in the past to protect its use or to obtain a trademark registration. Alternatively, it says that “privacy and data protection laws can often also be relied upon to oppose the unauthorized exploitation of a person’s name or photograph”.

Bruce Willis is just one example of a celebrity who has ‘licensed’ his own image to another company for commercial purposes – but what exactly does that mean? Ron defines this “licensing” process as an agreement that allows a company to use a celebrity’s likeness without fear of being challenged for its use. An added benefit is the celebrity’s active sponsorship and media endorsement, which goes beyond the passive use of an image and is often an agreed-upon part of the deal. He says, “If celebrity tried to distance itself from commercial exploitation, that could seriously undermine the commercial value of that exploitation. Thus, licensing arrangements and the active cooperation of the individual are usually necessary to derive value and credibility.”

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While Ryan hasn’t seen the exact terms of Bruce Willis’ deal with ‘Deepcake’, he understands the actor has granted the content platform his ‘digital twin’ rights. Based on his previous knowledge of similar deals, Ryan speculates that this deal will go into details about how the deepfake “dummy” could be used, such as depicting Bruce with different clothes or hair, in different ages or using his voice, slogans and more. characteristics associated with his public image. This type of control allows a celebrity to prevent their digital double from being used in certain contexts – such as banning pornographic use, repeating their voice, or being portrayed in scripts or with products that conflict with their personal values.

Even with this degree of control, Ryan cautions that—by definition—licensing something means giving up some of your rights. “That’s true, even if the license is very narrow,” he says. “Sometimes parties to a license reasonably interpret the terms of the license differently, which may result in the licensee exploiting the license in ways the licensor did not anticipate or intend. This could be particularly problematic for complex projects such as TV commercials or films, where it may be physically impossible for a busy celebrity to control all the content involving their digital double.”

For big names and brands looking to work with deepfake technology in the future, he adds, they should expect to start setting precedents as the technology matures and more legal issues around it enter courts around the world. disputes, particularly when the technology and these licensing arrangements are new.” And as deepfakes in the entertainment and commercial worlds become more common, he also suggests that this new avenue for celebrity endorsement may be standardized in future entertainment contracts – including “digital twin licenses for promotional or commercial purposes” alongside the main deal of the agreement.

However, as disturbing as it is to have a digital doppelganger out there in the world, Ryan expects many celebrities to soon follow in the Die Hard star’s footsteps – licensing their likenesses for adverts and more. “Celebrities will see them as an opportunity to be in many places at once,” he says, “doing many jobs at once that the celebrity would otherwise be unable or unwilling to do.”

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