Artificial Intelligence: Deepfakes in the entertainment industry | Fenwick & West LLP


Since the release of the first Terminator movie, we’ve seen portraits of robots taking over the world. We are now at the beginning of a process by which technology – particularly artificial intelligence – will help disrupt the entertainment and media industries themselves.

From traditional entertainment to gaming, this article explores how deepfake technology has become increasingly compelling and publicly available, and what impact leveraging this technology will have on the entertainment and media ecosystem.

What is a “Deepfake” and why is it important?

The term “deepfake” refers to an AI-based technique that synthesizes media. This includes layering human features onto another person’s body – and/or manipulating sounds – to generate a realistic human experience. Actor Val Kilmer lost his distinctive voice to throat cancer in 2015, but Sonantic’s deepfake technology was recently used to allow Kilmer to “speak.” (The actor’s son broke down in tears upon hearing his father’s “voice” again.)

Deepfakes have also been used to break down language barriers, notably by English football great David Beckham in his Malaria No More campaign. There, the deepfakes allowed Beckham to deliver his message in nine different languages. And sometimes deepfakes are used for fun, like in this art installationwhich allows users to take a “surreal” selfie with Salvador Dalí.

Leveraging deepfakes to improve a talent’s skills

Commercial applications of deepfakes currently include both the hiring of the underlying “deepfake actors”, as well as individuals whose likeness is used as “packaging(i.e. the face or likeness depicted in the content) for the underlying performance. When the so-called wrapper is a famous personality, it can save hours of underlying talent that would otherwise have to be spent on set; this burden may be shifted to the deepfake actor instead. In addition, such technology allows influencers to create personalized messages for hundreds or thousands of people without the need to actually record each message.

Previous new applications of this technology do not fundamentally change the nature of talent deals or the acquisition of necessary talent rights, but they do introduce new wrinkles that both sides in the negotiation need to carefully consider. For example, control of talent’s use of likeness rights is always negotiated in great detail, but talent releases or agreements are unlikely to typically consider the right to use likeness rights as a wrapper. to generate a potentially infinite number of realistic deepfakes. Additionally, moral clauses will require careful drafting to determine whether a deepfake performance, potentially a performance over which the talent had no control, can serve as grounds for triggering termination. Talent unions may also need to think more specifically about how this technology will be addressed in future sectoral negotiations.

Finally, there is the open question of whether this technology will help or hurt talent in general. On the plus side, the scalability of allowing an actor to appear in commercials or on e-commerce websites anywhere in the world (without requiring studio trips, learning a new language, or improving accent work) could be stimulating. For example, Synthesia recently did this with two advertisements featuring rapper and entrepreneur Snoop Dogg. The initial ad was so successful that the company’s subsidiary wanted to use the same ad, but with the branding and names removed. Rather than having to reshoot, Synthesia used deepfake technology to alter Snoop Dogg’s mouth movements to match the affiliate’s name in the new ad.

On the other hand, the widespread adoption of deepfakes could displace non-celebrity actors, leading to job losses or a change in how the industry hires talent for productions. If it becomes more efficient and otherwise desirable to hire relative strangers to portray those with celebrity status, there are fewer opportunities for these actors to gain exposure or “discovery” in their own right. This could lead to the creation of a caste of deepfake actors who will never achieve celebrity status or the ability to monetize their name and image.

Incorporate celebrity deepfakes into digital content

Individuals have also exploited celebrity deepfakes on social media platforms, further highlighting the ubiquity (and accuracy) of the underlying technology. In early 2021, a Belgian digital AI artist worked with a Tom Cruise impersonator to generate highly realistic “Tom Cruise” videos on TikTok under the @deeptomcruise account. These videos featured “Tom Cruise” participating in original activities, drop in and tell a Soviet Union joke in a retail store at perform industrial cleaning services, and attracted hundreds of thousands of views. Also a Harry Styles deepfake demanding more strawberries in a musical ode to his song watermelon sugar instantly went viral on TikTok last year.

If an individual or company wishes to create a celebrity deepfake for media content, they should carefully consider with an attorney whether they are permitted to do so under applicable law. He must go through some key legal bases to post this type of content, including whether the content is a protected class of free speech (e.g. parody), whether the celebrity’s publicity rights have entered the domain public and whether it has a fair use defense to a claim of copyright infringement. Otherwise, as in all other cases, consent is likely required for the use of talent likeness in this context.

Consider State Laws

An individual or business should also consider recent state laws that specifically address synthetic and digitally manipulated media.

For example, in November 2020, New York enacted a law which expressly prohibits the use of “a deceased artist digital replica» in audiovisual content, for 40 years after the death of the performer, if this use is « likely to lead the public to believe that it was authorized ». This could ban the use of deepfakes in cases such as Anthony Bourdain’s documentary Roadrunner. There, controversially, the film’s director leveraged deepfake technology to generate three lines that brought Bourdain”the voice comes back to lifein order to complete the production after his death, despite the celebrity chef’s widow, Ottavia Bourdain, claiming that she did not give permission for such use.

On the political front, Texas has enacted a law in September 2019, which prohibited the dissemination of misleading “deepfake videos” intended to harm candidates or influence a voter base within 30 days of an election. The next month, California passed a similar law but clarified that the period in question is within 60 days of an election. Additionally, platforms that host deepfakes will also need to consider compliance issues regarding claims of deception.

Augment Video Game Characters with Deepfakes

The gaming industry is another natural area of ​​disruption by deepfakes, especially when it comes to avatars. A key premise of many games is that a player assumes the role of a character, such as Luke Skywalker or Princess Leia from Star Wars. But an even more immersive gaming experience wouldn’t just be about controlling Luke or Leia with a gamepad, but also having the avatar track your face and mouth movements – something deepfake tech does a reality. Moreover, with synthetic speech generated by deepfake, it’s possible to make your voice sound like Luke or Leia, and it’s sometimes had some unintended positive consequences. For example, these so-called “voice skins” are allow LGBT people to change their in-game voiceresulting in more enjoyable gameplay – an unsurprising discovery given the statistics 2020 from the Anti-Defamation League that more than half of voice chat users are harassed while gaming, and 37% of LGBT gamers are harassed based on their sexual orientation.

Of course, general-purpose technology like this can also be misused, for example to fraudulent identity theft for financial gain or fraudulent connections voice gate systems. And deepfake technology will impact non-player characters (NPCs) as well as your own avatar. The impressive combination natural language generation models such as GPT‑3 paired with gaming deepfakes will result in NPCs possessing the unlimited ability to converse with your avatar with compelling synchronized face and mouth movements without the need to follow specific scripts. Video game developers will need to analyze their existing licensing agreements with the content owners of these characters and story arcs to determine if deepfake use cases are permitted.

Other potential benefits

In addition to the economic benefits of using deepfakes discussed above, the underlying technology can also be used for social good in digital media. For example, an HBO documentary titled Welcome to Chechnya details the lives of LGBT activists forced to live in secrecy under threat of execution. To protect the identity of these activists, the documentary used deepfake wrappers, where the director only reviewed packages that were LGBT activists themselves but resided in countries free of death threats due to their sexual orientation. Deepfakes have also been used to create unique and bespoke voices for the millions of people who rely on synthetic speech and have been used to create unique and bespoke voices for the millions of people who depend on synthetic speech to communicate.

Practical considerations for the future

As deepfakes continue to permeate various facets of digital media, individuals and businesses looking to take advantage of the underlying technology will need to think preemptively about their existing contractual agreements and navigate applicable law on this topic. In addition, individuals entering into talent contracts should carefully review the terms of their publicity rights to ensure that they have sufficient control over how those rights may be used in conjunction with technologies. based on artificial intelligence. If approached thoughtfully, the development and use of deepfakes can be leveraged to promote social good, both commercially and socially.

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