Haldanes, Solicitors and Notaries | View firm profile
In March 2024, a Chinese content creator released on Weibo a “video tribute” to the late artist CoCo Lee, who tragically passed away in July 2023.
The video featured the late artist speaking from beyond the grave in her own voice, expressing gratitude and giving encouragement to her fans.
Not surprisingly CoCo Lee hadn’t made an appearance from the “other side,” neither had she left behind a video message to be played after her death.
The entire video was created with generative artificial intelligence (AI), with both the digital avatar and her voice spliced from existing footage and recordings.
Reaction to the video was, to put it mildly, mixed.
Netizens expressed unease as to how the dead were being “used.”
The family and estate of CoCo Lee, through a PRC law firm, issued a public statement demanding the removal of the video, saying the video was made without the consent of the family, and condemning it as exploiting CoCo Lee’s image “to sell AI services” for “illegal profit…under the guise of sentimentality.”
They went to say the video had caused severe psychological distress and secondary harm to the family. The family also warned the misuse of CoCo Lee’s image infringed the rights of the family under the PRC Civil Code[1].
The video has since been taken down, but the content creator defended it as an “expression of love”, claiming he had done it for free and had expressly disclosed the video was AI-generated.
This is not the first, and certainly won’t not be the last, time a deceased celebrity is “resurrected” with digital technology.
During the filming of the Furious 7 (released in 2015), star Paul Walker passed away halfway through the production. The filmmakers opted to digitally re-create the star in a touching final farewell scene.
Movie star James Dean, who passed away more than 60 years ago, is set to “star” in a new and upcoming movie called Back to Eden, to be represented entirely by a digital recreation of the late actor.
“Resurrecting” celebrities could however come with a slew of issues.
Personality Rights…
Many countries recognise some form of “personality right” or “publicity right” or “image right”, which provides that any person is entitled to control the use and exploitation of their own identity, name, image, and likeness, and the individual’s consent is required before these can be used by anyone else.
However, once they die, the extent to which a personality right is protected varies from country to country (and from state to state in the US).
It is commonly the case that a person’s personality rights pass to their estate or family who would then be required to provide their consent.
As such, it is often the case that media projects (movies, advertisements, songs) which seek to exploit the likeness of a deceased celebrity will first seek the consent of (and often pay a fee to) the deceased’s family/estate.
… or not?
However, personality right is not universally recognised.
For example, it is not recognized as a protectable class of rights under English common law, so there is no personality right protection in various English common law jurisdictions such as the UK, Australia, Hong Kong, Singapore, and India.
Instead, these countries often rely on a patchwork of different laws to protect different aspects of personality right, such as:-
-
- the tort of passing off prevents misleading use of a person’s name or imagery to create the false impression of endorsement;
- the law of confidence protects certain aspects of privacy;
- defamation and malicious falsehood protect against injury to reputation;
- data privacy laws prevent certain use of personal data;
- intellectual property laws such as copyright and trade marks to stop third parties’ use of certain materials.
It should be noted there remain notable gaps in the protection accorded by these laws.
For example defamation laws and data privacy laws are not applicable to a deceased persons and thus accord no protection; the tort of passing off deals only with the harm of misrepresentation and the economic damage caused by the creation of false economic linkage, so there could be several permutations of how a deceased person’s imagery is used without any misrepresentation.
The CoCo Lee scenario is one such scenario where there is arguably no overt misrepresentation and no economic damage caused to CoCo Lee’s family. It would therefore be questionable whether any claim would succeed if the scenario occured in a common law jurisdiction.
On 2 May 2024, the UK’s All-Party Parliamentary Group (APPG) on Music, published a report on the impact AI has on the music industry and called for better legislative protection against misuse of AI[2]. One of the proposals put forth was the introduction of a specific personality right, closely referencing personality right in the US.
A Star Wars Addendum
The recent case of Lunka Heavy Industries (UK) Limited & Lucasfilm Ltd LLC v Tyburn Film Productions Limited [2024] EWHC 2312 (Ch) also sheds light on some interesting dynamics which may be at work when it comes to resurrecting deceased celebrities.
The case concerns the 2016 movie Rogue One: A Star Wars Story, which features a scene with the Star Wars character Grand Moff Tarkin, played by the late British actor Peter Cushing in the 1977 original Star Wars: A New Hope.
Mr. Cushing passed away in 1994. With the consent of (and payment to) Mr. Cushing’s estate, the filmmakers of Rogue One digitally recreated Mr. Cushing’s appearance to reprise his role as Grand Moff Tarkin in the movie.
Tyburn, the claimant to the case, is a film production company owned and operated by a long term personal friend and professional collaborator of Mr. Cushing.
Tyburn alleges it entered into an agreement with Mr. Cushing in 1993 shortly before his passing, whereby he agreed not to grant permission to anyone to reproduce his appearance through special effects without Tyburn’s written consent.
Tyburn alleges no such consent was given and commenced Court proceedings in the UK against Mr. Cushing’s estate for breach of contract, and against the filmmakers for unjust enrichment.
A Master of the High Court of England and Wales summarily dismissed Tyburn’s unjust enrichment claims against the filmmakers.
Tyburn appealed to a High Court Deputy Judge and eventually had the dismissal overturned, indicating the case against the filmmakers is not entirely meritless and can proceed to trial.
It should however be noted that, in granting Tyburn’s appeal, the judge commented he was “far from persuaded that the Claimants will succeed in its claims…”, but he allowed the case to proceed as he is “also not persuaded that the case is unarguable to the standard required to give summary judgement to strike it out.”
He added “in a field of law which is not yet settled, I cannot be certain that the claim is bound to fail,” which suggests while the judge was not entirely convinced of the merits of Tyburn’s case, he acknowledged further legal argument might be warranted.
Therefore, apart from personality right (which may or may not be recognized depending on the jurisdictions involved), there may also be a contractual dimension to “resurrecting” deceased celebrities.
This could be a further complication as the estate/family of deceased celebrities may not have full knowledge of the deceased’s affairs.
It is undeniable generative AI represents a paradigm shift for the entertainment industry.
A task which previously required hundreds of thousands, if not millions, of investment in CGI technologies, may now be done by a netizen with an AI subscription plan.
The potential for misuse, especially by layman, cannot be understated.
It remains to be seen how capable our existing laws are in tackling the legal issues brought by this new development.
Author: Anthony Leung
Footnotes
[1] Article 994 of the PRC Civil Code (民法典):
第994条 死者的姓名、肖像、名誉、荣誉、隐私、遗体等受到侵害的，其配偶、子女、父母有权依法请求行为人承担民事责任；死者没有配偶、子女且父母已经死亡的，其他近亲属有权依法请求行为人承担民事责任。(Where the name, likeness, reputation, honour, privacy, remains, or the like, of the deceased is harmed, the spouse, children, and parents of the deceased have the right to request the actor to bear civil liability in accordance with law. Where the deceased has no spouse or children, and the parents of the deceased have already died, other close relatives of the deceased have the right to request the actor to bear civil liability in accordance with law; emphasis added)
[2] As retrieved from https://www.ukmusic.org/wp-content/uploads/2024/04/APPG-AI-Report-Low-res.pdf on 20 September 2024