New York boasts the most comprehensive definition of “right of publicity” that protects individuals who died against commercial exploitation or unauthorized use of their personal characteristics. But even in states with apparently strict regulations in place, the right of publicity really protects the estate of the deceased, not necessarily the dead person.
“If your family wants to sell you out and you’re dead, there’s not a whole lot you can do,” says New York-based attorney Pou-I “Bonnie” Lee, who co-authored the Landslide legal article with Kahn. What this means is that Marilyn Monroe, for example, could appear in a pornographic film posthumously – legally – if her estate were to consent to the use of her image and likeness in this manner. “If the estate is saying they want this, it’s unfortunate, but I think it could happen,” said Lee.
Personal use and private individuals
While dead celebrities do have some vague protections in specific jurisdictions when it comes to commercial exploitation of their image and likeness, average citizens may have far less control over how their likeness and digital legacy are used postmortem. In the US, there’s little legislation protecting the dead from being digitally resurrected for personal use. When you die, just about anyone can upload your public digital legacy into AI software to create a deadbot or an interactive AI avatar. States with more expansive postmortem protections, such as New York, do prohibit the use of individuals’ identities for certain nefarious purposes, but Lee is skeptical of how these protections are enacted. “Ultimately someone needs to enforce it,” she says.
Cloyd, Friedlander and Kahn all agreed that there needed to be legislation put in place sooner rather than later to protect the rights and legacies of the dead – both celebrities and otherwise. Technology is advancing at a rapid pace, and ethical debates around digital representations of the dead are already cropping up. Cloyd admits to initially being “a little worried” about how the dead are being digitally revived but says he’s confident that WXR is being proactive and sensitive in dealing with these issues.
Friedlander, too, is actively advocating for legislation that protects voice actors from losing work, and he hopes that Nava’s work will help actors’ associations around the world to organize and advocate for fair opportunities.
As for Winslow, he admits to having mixed feelings about seeing his cousin digitally resurrected. “I don’t know what to think about it,” he says. “I want him to be respected. He was really involved in acting, took it very seriously. I would want the same image to be projected.”
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