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September 15, 2023
John Rizvi, Esq.

Actress VS. AI: A New Front Opens in War Against Artificial Intelligence

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Keira Knightley has long been known as a trendsetter in Hollywood. Now, the 38-year-old actor and Pirates of the Caribbean alum is making waves in a new way, proposing to file for intellectual property protection for her voice and likeness.

Knightley says the primary goal is to ensure that AI cannot legally replicate her face, voice, or body without her permission.

In doing so, she’s setting herself at the vanguard of an entirely new regime of Hollywood elites.

But can Knightley even do this legitimately, and what does this latest salvo in the war between human and machine intelligence mean for the future of intellectual property law and entertainment as an industry and a human endeavor?

Let’s take a closer look!

The Controversy

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On July 13th, 2023, the Screen Actors’ Guild (SAG) joined the Writers’ Guild of America in an ongoing strike against Hollywood studios and producers. Among their demands were enhanced protections and guardrails against studios using, or attempting to use, AI-generated “deepfakes” of actors’ likenesses and voices to increase studio revenue while cutting actors and writers out of key elements of their income, such as direct contract compensation, perks, benefits, and residual income from syndication and other avenues.

As the strike has dragged on, with only minimal headway made in the negotiations between the studios and the unions, one key element keeps coming to light again and again: the proposed role of artificial intelligence in generating background actors.

AI and other technologies have been used to generate large crowds for scenes like riots and epic battles (think the mindbendingly huge battles with casts of thousands in Lord of the Rings or The Matrix, for example).

But only in the past few years have studios started seriously exploring AI’s potential as a cost-saving measure. However, one major problem with this paradigm that SAG/AFTRA and WGA are calling out is the alarming proliferation of background actors who say they have been coerced, coopted, or duped into allowing studios to capture their images in ways their original contracts never covered–and which could give the studios the right to use their likenesses in perpetuity without further compensation to the actors in question.

The controversy also impacts the music industry, as AI-generated soundalikes of singers and songwriters continue to hit the internet and from there, the airwaves.

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With actors from Hollywood unknowns to A-listers like Knightley and Sean Penn speaking out against the lack of guardrails surrounding the use of AI, proposals for what the studios ought to do to allay actors’ and writers’ concerns about how their intellectual property and products may be used vary wildly.

As quoted in the New York Post, Penn posited that if Hollywood execs wanted to use his likeness free of charge in perpetuity in any way they liked, he was willing–on the condition that they, in turn, provided him with likenesses of their daughters with which he could do whatever he wished in a virtual setting.

This cringey proposal, Penn continued, did have a deeper point. “It’s an indecent proposal. That they would do that and not be taken to task for it is insulting.

This is a real exposé on morality — a lack of morality,” Penn said.

On the other side of the coin, Knightley is proposing to copyright her face, voice, image, and likeness to give her exclusive ownership and control over their use.

This would also allow her to take legal action against those who use her likeness for their own ends without her consent or properly licensing such usage, ranging from casual pornographic deepfake creators to the highest echelons of Hollywood.

In doing so, she joins a growing contingent of actors including George Clooney and Julia Roberts who have sued companies for improper use of their likenesses in their advertising.

Can You Own Your Own Likeness?

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Technically, a human being’s likeness is not considered intellectual property.

The elements of a human’s likeness, which is to say their face, voice, body, signature, and identity, are the result of a number of accidents of genetics and life choices made by themselves and others.

Since intellectual property traditionally only covers intentionally human-created works such as art, writing, and music, someone’s likeness in and of itself does not rise to a level where legal protections for IP would apply.

On the same note, there is no law assigning absolute control or right of ownership over one’s own likeness.

Private individuals and celebrities do enjoy certain rights of privacy and publicity which allow them some limited control over their likenesses, how they are used, and in what contexts.

For example, you can’t just slap a celebrity’s face on a poster and sell it without permission, and you can’t break into a private citizen’s home and take pictures of them while they’re sleeping with the intent to sell those images.

Use of celebrities’ likenesses is restricted by the right of publicity, which gives limited control over how, where, by whom, and why their images can be used for someone else’s financial gain. Private individuals have the right of privacy, which allows them similar control over how and under what circumstances their images are used publicly or for profit.

It’s important to note that these rights are not enshrined in federal statute or case law, but are generally considered and prosecuted at the state level.

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By attempting to shield her likeness under federal intellectual property laws, Knightley may well end up rewriting the case law on how, by whom, under what circumstances, and to what degree intellectual property protections can be claimed.

The first step would probably be to trademark her name, face, voice, handwriting, and other key elements of her public persona. From there, she would have a more compelling case to copyright herself and her artistic output–if she can convince the USPTO and the Copyright Office that such protections are appropriate.

While this may seem like an uphill battle, Knightley does have some allies in this fight.

As I discussed recently, Congress itself is evaluating the current landscape of AI use and abuse and attempting to determine what statutory guardrails can be put in place without violating the Constitutional rights of American creators.

Having someone of Knightley’s high profile making these steps will certainly fuel the Congressional fire to ensure the use of AI doesn’t trample the rights of privacy or publicity, either inadvertently or intentionally.

Do we really need to be worried about AI?

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Proponents of AI say that the people sounding the alarm about the potential damage AI can do to the entertainment industry, and by extension other industries, are simply insecure about their own talent.

Some liken it to the invention of the automobile, the airplane, the moon landing, or even the internet itself, saying that disruptive technologies, once unleashed on the public, cannot be put back in the genie bottle and should therefore be embraced and adopted as quickly as possible.

Opponents push back against this view, observing that human creators need contractual and legal protections to safeguard their livelihoods from obsolescence. They also say that adoption and use of AI, like any new technology, should be curtailed until there is a reasonable certainty that these tools are being used in an ethical way which centers humans and humanity first. Still others take a more neutral and moderate view, considering that AI is in fact only a tool and it is the responsibility of the human beings who use it to do so in a responsible and ethical manner.

Ultimately, the strike, and the conversation around AI’s use in the entertainment industry, comes down to money.

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Members of unions must earn a certain threshold amount per year to be eligible for union benefits, which can be problematic in an industry where compensation is not always certain and projects don’t always get off the ground.

The studios’ proposed employment of AI could upend these current restrictions as members are able to earn less. For instance, union show writers get paid more if they produce a first draft themselves than if they’re brought in to edit or rewrite an existing script–but if the script was generated by AI, the show writer automatically loses out on first draft compensation under current Hollywood contract parameters.

For union actors, only an estimated 12.7% earn enough each year to qualify for union health insurance, and using AI to endlessly recombine and remix actors’ likenesses into new projects without compensating the actors would drive that number sharply downward while generating unheard-of new revenues for studios from Paramount to Netflix.

The concerns here should be self-evident at this point. AI cannot create anything in itself.

It can only rehash, remix, revise, and repackage what others have already done. However, if Hollywood and other entertainment-world entities can convince, coerce, or deceive actors into signing away the rights to their likenesses in perpetuity for a nominal fee, the result won’t just be a sudden flood of unemployed actors and writers hitting America’s marketplace, but a stagnation of creativity and art itself.

The very human elements that bring us to the movie theater or the new show on Netflix will be, if not lost entirely, buried under so many layers of computer code that entertainment will become the latest iteration of the Uncanny Valley.

I don’t claim to know what the fix is for this.

I don’t know what the future is going to hold, or how the Hollywood power structure can or will allay the well-based fears that SAG/WGA are expressing through their joint strike that AI will end up benefiting only the studios and the executives. What I do know is that Kiera Knightley has, if not the right idea, at least the starting glimmer of the right idea.

The next step, of course, will be to see if she can muster an argument which will convince the USPTO and the Copyright Office that IP rights to one’s own image should be expanded in the face of the ongoing threat from AI.

Because if she succeeds, she could singlehandedly change everything about how we understand the rights of publicity and privacy–and how ownership of one’s own likeness is viewed, protected, and challenged under the law.

ABOUT JOHN RIZVI, ESQ.

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John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).

His books include “Escaping the Gray” and “Think and Grow Rich for Inventors” and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show – Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com

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