Dupes and Deepfakes: A Guide to the Law Related to your Likeness
With recent advances in technology, particularly artificial intelligence (AI), movie studios have been able to bring the likenesses of actors to the big screen in new ways. James Dean has been able to star in new films despite dying 64 years earlier, and Mark Hamill has been able to continue to play the iconic role of Luke Skywalker in season two of the Mandalorian by digitally imposing his face onto a body double. These examples have come to fruition after significant discussions and labour agreements. However, this is not always the case; there have been instances of companies using the likenesses of actors without their knowledge or consent. One recent case involves Scarlett Johansson and OpenAI, where the AI company approached the actress multiple times to use her voice for their new AI voice assistant. After declining their offer to voice the assistant, Johansson was shocked to discover that the voice they chose sounded eerily similar to hers. This is a burgeoning issue in intellectual property, so it is important to understand the law in this area.
The Law in Canada
Within Canada, this issue would fall under the common law tort of misappropriation of personality. This tort arises when an entity uses a likeness of a famous person without their consent for commercial gain. In this case, likeness refers to voice, physical appearance, and name. There are three elements to this tort: 1) it is meant to generate a commercial gain, 2) the personality that is captured is identifiable, and 3) it is suggested that the exploited personality is giving an endorsement. There are also statutory protections in British Columbia, Saskatchewan, Manitoba, and Newfoundland and Labrador, while Quebec has civil law protections.
However, this tort only protects against those who have recognizable or famous personas (celebrities). There are also protections in place for non-famous people. This comes in the form of a tort known as intrusion upon seclusion. This is a somewhat recent tort in Ontario that protects plaintiffs from highly invasive breaches of privacy. The tort requires that a reasonable person would find that the invasion of privacy was “highly offensive”. It does not require that the plaintiff has suffered economic harm.
In addition to these established protections, there has been increasing discussion surrounding the potential ability of persons to trademark their likeness, or at least part of it. Canada allows non-traditional identifiers to be trademarked, such as certain sounds (voice clips), certain motions, and other visual marks. Lawyers are actively registering these marks alongside the above-mentioned protections to establish a more robust defense against the misappropriation of a person’s likeness.
Takeaways
Whether you are an A-List celebrity or an average person, there are protections in place in Canada for your likeness. With the advent of AI and improved technologies, companies and other entities are able to manipulate likenesses more easily, but there is also a burgeoning threat against people’s privacy and intellectual property. By understanding the protections in place, one can better guard themselves from malignant elements who would use these exciting new technologies for nefarious purposes.
Disclaimer: This post was prepared by law students at WIPILC. The information provided is for informational purposes alone, shall not be interpreted as legal advice, and is not intended to provide advice or recommendations.