For some experts, this portability could lead to people losing control over their “personality” because companies have full ownership of their identities, not just licensed use for specific purposes. In fact, the original call for such transferability was made in the 1950s by lawyers for studios who wanted to control the films actors starred in and the products they endorsed. “A person might (probably) get more money for such a total transfer, but the cost to the individual and society seems inconceivable,” Rothman said.
For example, student-athletes, risk agents, managers, corporations, and even the NCAA are masking their identities in hopes of any future profits following their major league success. Rothman believes that actors, athletes and ordinary citizens risk losing control over “creditors, ex-spouse, record producers, managers, and even Facebook’s name, likeness, and voice.”
Many actors will not be affected simply because their identities will not have value. But it’s also true that celebrities like Kim Kardashian and Tom Cruise have bargaining power that no one else has: They can negotiate boldly not to use their images beyond any particular show or movie. At the same time, smaller players face the possibility of entering into contracts with large numbers of extraction rights. Johanna Gibson, a professor of intellectual property law, said: “There is a real risk to new actors (i.e. just starting out and eager to get a breakthrough job) who are particularly vulnerable to signing publicity rights as a condition of their first contract.” in London University Queen Mary College. “This power imbalance could be exploited by studios keen to commercialize images and characters and indeed avoid defamation (depending on the nature of the commercialization), as performers will no longer have control over how their images are used .”
This could cost actors either missing out on work or signing a contract that would have them deepfake without legal recourse to content they deem degrading. Gibson believes that in the movie franchise model, the stakes are even greater.
SAG-AFTRA disagreed, explaining that rational minds are always different, even when working toward the same stated goal. “While some prominent commentators have expressed concerns that transferable publicity rights could lead to involuntary transfers or forced commercialization, there is little reason to believe that such concerns will materialize,” Van Lier said. “To the best of our knowledge, there has been no instance in which anyone has been involuntarily assigned or forced to take advantage of that right during their lifetime. The most high-profile attempt involved OJ Simpson, which the court explicitly refused to transfer to the victim’s family.”
Ultimately, an AI trained on Bruce Willis portraits will not need Bruce Willis at all. “If a company can train its AI algorithms to replicate the specific behavior, timing, pitch, etc. of a specific actor, it will make the AI-generated content more and more realistic,” Van Lier said. “This could have long-term effects.” In other words, actors — and everyone else — must learn how to protect their digital rights, or they’ll find themselves in a role they didn’t expect.
