By: Dhruva Krishna<\/p>\n
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<\/u>I. Virtual Avatars: Lazarus to Luke Skywalker, Deepfakes to Dystopia <\/strong><\/u><\/p>\n Virtual avatars are digital recreations of an individual or their performance.<\/em> Entertainers now regularly appear in all forms of media as virtual avatars\u2013in video games<\/a>, as holograms<\/a>, and as younger versions<\/a> of themselves in film.<\/p>\n COVID-19 has increased the prominence of virtual avatars. In April 2020, Travis Scott broke records for his Fortnite performance, drawing 12.3 million viewers<\/a> and reportedly earning $20 million<\/a> for a nine-minute digital concert. The virtual concert platform, Wave, has produced virtual events for artists<\/a> like The Weeknd, Lindsey Sterling, John Legend, and others. The platform raised $30 million<\/a> in Series B funding from investors like Scooter Braun, a music industry mogul, and Kevin Lin, one of the co-founders of Twitch, and recently announced partnerships with Tencent Music Entertainment, China\u2019s leading music company.<\/p>\n It took four days for Lazarus to rise from the dead \u2013 entertainers might be resurrected faster. Some examples of celebrity \u201cresurrections\u201d include the touring Buddy Holly and Roy Orbison holograms<\/a>, the recreation of<\/a> Peter Cushing as Grand Moff Tarkin in Rogue One, or the Rob Kardashian hologram<\/a> Kanye West \u201cgifted\u201d to Kim Kardashian.<\/p>\n These developments reveal a technological revolution underway. For instance, advancements in artificial intelligence (\u201cAI\u201d) technology, machine learning, and data processing have upended the way music is typically produced. AI can now make original, highly realistic creations by \u201clearning\u201d from existing work. Jukebox<\/a>, an easy-to-use neural net created by OpenAI, \u201cgenerates music, including rudimentary singing\u201d in a variety of different styles by drawing on a dataset of 1.2 million songs.<\/p>\n This revolution has democratized access to extremely powerful technologies.\u00a0 People can create<\/a> their own virtual avatars with little to no programming knowledge or cost. In 2021, a Star Wars fan recreated<\/a> the appearance of Mark Hamill as Luke Skywalker in the popular show \u201cThe Mandalorian\u201d using deepfake technology. The deepfake was heralded as a significant improvement<\/a> over Disney\u2019s virtual avatar.<\/p>\n The confluence of powerful technology and increased access can be destructive, however.\u00a0 Scholars<\/a>, celebrities<\/a>, and private individuals<\/a> have variously articulated how the use of virtual avatars can effect immense personal, moral, and economic harm. For instance, nonconsensual pornographic deepfakes proliferate online with little ability<\/a> to stop their spread. Additionally, the nation was in a state of paranoia over the use of deepfakes and virtual avatars to disrupt the 2020 election<\/a>, leading to new content restrictions<\/a> online.<\/p>\n At the crux of these issues is a legal status quo that does not afford sufficient protections. There are issues with enforcement, takedown, and the proliferation of harmful virtual avatars.\u00a0 Advocacy groups have pushed for expanding existing legal protections or creating new ones. More recently, these protections have focused on crafting digital replica and likeness laws.<\/p>\n <\/p>\n II. New York\u2019s Right of Publicity Exemplifies Digital Replica and Likeness Legislation Flaws<\/u><\/strong><\/p>\n There have been federal and state efforts to create new digital replica and likeness laws.\u00a0 Such laws include mandatory disclaimers<\/a> for manipulated media, banning virtual avatars<\/a> during election periods, and creating causes of action<\/a> for nonconsensual digital pornography.<\/p>\n There are common weaknesses amongst these efforts. First, these laws employ confusing language, creating overinclusive and underinclusive protections. Second, these laws have unclear and ineffective exceptions or disclaimer requirements. Ultimately, these laws are likely to deter valuable innovation in new technological fields.<\/p>\n On November 30, 2020, Governor Andrew Cuomo signed<\/a> an updated New York right of publicity statute into law. The statute ended the battle to recognize New York\u2019s right of publicity postmortem protections, much like its California counterpart. Yet, New York\u2019s right of publicity law exemplifies the weaknesses of digital replica and likeness laws.<\/p>\n <\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 A) Deceased Performer, Deceased Personality, and Digital Replica Protection Flaws<\/em><\/p>\n New York\u2019s new right of publicity law creates new provisions encompassing virtual avatars, particularly protections covering \u201cdeceased performers,\u201d \u201cdeceased personalities,\u201d and \u201cdigital replicas.\u201d Specifically, they provide new avenues of imposing civil liability against individuals using an artists\u2019 works and likenesses.\u00a0 These protections last forty years after an individual\u2019s death, as set out in \u00a752f-7(c)(8). However, the protections provided by these provisions, and the way that they intersect, are confusing.<\/p>\n <\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 i) \u201cDeceased Performer\u201d and \u201cDeceased Personalities\u201d Take, first, New York\u2019s new provision, \u00a750-f(1)(a), defining \u201cdeceased performer.\u201d\u00a0 These are performers who \u201cfor gain or livelihood\u2026regularly engaged in acting, singing, dancing, or playing a musical instrument.\u201d This provision encompasses modern virtual avatars like Roy Orbison, Michael Jackson, Whitney Houston, and more.<\/p>\n However, this language is overinclusive by using a \u201cfor gain or livelihood\u201d threshold, which sweeps in much more than just professional entertainers. If an attorney performs in a band, would they fall under the provision? If a teenager posted videos of themselves dancing on social media sites to sell products, would they fall under this definition? The additional qualification of \u201cregularly engaged\u201d does not provide guidance. Is this once a week? Twice a year? Three times a month? More private individuals may now have rights of publicity, which may not have been within the contemplation of the statute.<\/p>\n Additionally, entertainers who may not fall under the deceased performer definition, such as athletes or politicians, would <\/em>be encompassed by the definition of \u201cdeceased personality\u201d in \u00a750-f(1)(b), which covers any person \u201cwhose name, voice, signature, photograph, or likeness has commercial value\u201d at their time of death or because of their death. It does not matter if the individual actually utilized these aspects during their lifetime for gain.<\/p>\n The commercial gain provision is similarly overinclusive. The qualification of \u201ccommercial gain\u201d is not defined. This vagueness is troublesome in the age of social media, when many people are using their likeness for monetization. Consider a local yoga teacher who posts weekly tutorials on her Instagram page, with just several hundred local followers. After her death, the yoga teacher\u2019s estate demonstrates that her posts drew several new customers annually. This yoga teacher might have a deceased personality right.<\/p>\n The over inclusivity of both provisions raises thorny questions. The statute opens the door to a slew of private individuals who may be able to claim virtual avatar rights, potentially forcing courts to draw lines on what \u201ccommercial gain\u201d means. Evidentiary questions may be raised on how to best demonstrate that an individual used their likeness for gain or livelihood. Even if these questions are decided conclusively, the statute proposes a registration system for postmortem rights of publicity in \u00a750f-7, which requires filing a form with the secretary of state, making the relevant claim a public record, and creating a website with this information available. Importantly, if one does not register their right, they may not have a cause of action. If one is unsure if their likeness would be covered, this creates timing and resource issues regarding accurate registration. Additionally, this registration system may become overwhelmed with requests if the threshold for commercial gain is too broad. Thus, further guidance is needed to clarify this ambiguous language.<\/p>\n <\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 ii) Digital Replicas <\/em><\/p>\n New York provides a new provision, \u00a750-f(1)(c), defining digital replicas. A digital replica is a \u201cnewly created original, computer-generated, electronic performance of an individual in a separate and newly created, original expressive sound recording or audiovisual work in which the individual did not actually perform.\u201d However, the replica must be \u201cso realistic that a reasonable observer would believe it is a performance by the individual being portrayed and no other individual.\u201d<\/p>\n This definition favors virtual avatar creators. Given the state of technology, a combination \u201creasonable observer\u201d\/\u201cso realistic\u201d standard seemingly protects against the most harmful infringing uses. A hologram of four dinosaurs performing Beatles songs would not fall under the digital replica provision as no reasonable observer would think The Beatles are performing. In contrast, a highly realistic deepfake of The Beatles performing would be subject to liability.<\/p>\n Changing expectations of technology and artists may change this provision\u2019s application.\u00a0 As deepfake and highly realistic avatars become more common, a \u201creasonable observer\u201d may be less likely to believe any virtual avatar is an authentic or realistic performance. Additionally, a performance\u2019s realism may depend on the entertainer. A highly realistic avatar of The Beatles performing death-metal may still seem unrealistic enough to escape liability. But what about Brian Wilson of The Beach Boys performing a rap song<\/a>? Or Johnny Rotten of The Sex Pistols performing<\/a> new-wave music with jazz-legend Tony Williams and virtuosic-guitarist Steve Vai?<\/p>\n Furthermore, defining what a digital replica does not <\/em>encompass raises questions. The provision excludes sound recording remasters and the \u201cmaking or duplication of another recording that consists entirely of the independent fixation of other sounds, even if such sounds imitate or simulate the voice of the individual<\/em>\u201d [emphasis added]. What constitutes \u201cother sounds?\u201d Would OpenAI\u2019s Jukebox neural network qualify under this provision? This may become a complex evidentiary issue, raising questions such as whether a network\u2019s database incorporated an individual\u2019s voice or used others to form a composite.<\/p>\n <\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 iii) Liability Under the New Statute is Expansive <\/em><\/p>\n Putting these various definitions together, the statute generally creates two avenues of liability under \u00a750-f(2). The statute limits digital replica liability while providing expansive liability for deceased personalities.<\/p>\n Under \u00a750-f(2)(b), the statute outlines limited liability for improper use of digital replicas. Any person, \u201cwho uses a deceased performer\u2019s <\/em>digital replica in a scripted audiovisual work as a fictional character or for the live performance of a musical work shall be liable\u2026if the use is likely to deceive the public into thinking it was authorized by the person or persons [who can authorize such uses and did not provide their consent].\u201d By limiting liability for digital replicas to deceased performers, the rights of individuals who did not \u201cregularly engage\u201d in \u201cacting, singing, dancing, or playing a musical instrument\u201d for \u201cgain or livelihood\u201d would not be protected.<\/p>\n The statute favors virtual avatar creators by requiring that the public think the use was authorized. Thus, two separate thresholds must be met: first, under the digital replica definition, the replica must be highly realistic to be believable to a reasonable observer; second, even if this digital replica threshold is met, the public must think the use was authorized. Generally, these standards would seem to align. A highly realistic Beatles virtual avatar would likely cause the public to believe the use was authorized.<\/p>\n The protections for deceased personality<\/em> are much more expansive under \u00a750f-2(a). Any \u201cperson who uses a deceased personality\u2019s name voice, signature, photograph, or likeness, in any manner<\/em>, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or service, without\u2026[the person(s)\u2019s consent] shall be liable\u2026\u201d [emphasis added]. Deceased personalities encompass a much wider category of individuals than deceased performers. Also, there is no realistic or reasonable limiting standard. Under this provision, a poor quality or sufficiently different avatar of the Beatles may be encompassed, even if it does not fall under the digital replica provision.<\/p>\n <\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 B) Confusing Exceptions <\/em><\/p>\n The New York bill contains many confusing exceptions. For instance, it limits liability for deceased personality avatars by excluding, in \u00a750f-2d(i), literary works, works of art, parody, satire, and entertainment. Additionally, \u00a750f-2(d)(iii) grants a newsworthiness exception and \u00a750f-2(d)(iv) grants an exception for protected content that has sponsorship or commercial funding. However, it \u201cshall be a question of fact whether or not the use of the deceased personality\u2019s\u2026[likeness] was so directly connected with the commercial sponsorship or with the paid advertising or product placement as to constitute a use for which consent is required\u2026\u201d \u00a750f-2(e) makes a similar point, stating that no exception will be found if \u201cthe claimant proves that this issue is so directly connected with a product, article of merchandise, good, or service as to constitute an act of advertising, selling, or soliciting purchases\u2026without prior consent for the use\u2026\u201d As experts have noted<\/a>, branded content, sponsored posts, and blurry lines between authentic posts and paid advertising may create confusions for courts.<\/p>\n The bill also creates confusing exceptions for deceased performers and digital replicas. \u00a750f-2(b) states that a digital replica is not encompassed if \u201cthe person making such use provides a conspicuous disclaimer in the credits of the scripted audiovisual work, and in any related advertisement in which the digital replica appears,\u201d stating that the digital replica was not \u201cauthorized.\u201d However, what constitutes \u201cconspicuous?\u201d Artists may try and construe this narrowly, whereas avatar creators may try and construe this broadly. If the disclaimer was boilerplate legalese at the end of a long show and delivered as the audience was leaving the amphitheater, would this count as conspicuous?<\/p>\n The bill creates carveouts within the exceptions for digital replicas. \u00a750f-2(d)(ii) also creates an exception for newsworthiness for digital replicas. There is no liability \u201cif the work is of parody, satire, commentary, or criticism; works of political or newsworthy value, or similar works\u2026regardless of the degree of fictionalization; a representation of a deceased performer as himself or herself, regardless of the degree of fictionalization, except in a live performance of a musical work<\/em>\u2026\u201d [emphasis added].<\/p>\n This carveout is confusing. Suppose a creator makes a Charlie Daniels virtual avatar that meets the bill\u2019s requirements (preset script, highly realistic, etc.). This avatar goes on an a profanity-laced tirade about Democrats and Republicans before screaming \u201cNever Vote Socialist.\u201d<\/a> Put aside if this is a satire, parody, commentary, criticism, or other generally protected work. For artists, the statute will still be overinclusive\u2014if there is no \u201clive performance of a musical work,\u201d any representation of the deceased performer as \u201chimself or herself\u201d may be allowed. This seems to circumvent the purpose of the protection itself.<\/p>\n However, the provision also creates confusing standards for virtual avatar creators.\u00a0 Suppose that the creators underscore the avatar\u2019s performance with \u201cAmerica The Beautiful\u201d. Or, at the end of the tirade, the avatar plays a five-second-fiddle snippet of the \u201cStar-Spangled Banner\u201d. Are these sufficient elements to constitute a \u201clive performance of a musical work\u201d?<\/p>\n Digital replicas and digital performer rights are also subject to the exceptions of \u00a750f-2(d)(iv) and \u00a750f-2(e). As noted, these create confusing standards in the social media era.<\/p>\n <\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 C) Confusing Standards Can Harm Valuable Technology <\/em><\/p>\n The New York law is rife with ambiguities and confusing standards \u2013 sloppy lawmaking that can deter the development of valuable technology. As claims and lawsuits are brought under this law, new standards that widely enforce or constrain these provisions can have huge effects. If a court ruled that \u201ccommercial gain\u201d constituted any monetization of one\u2019s acting or musical performance, this would seemingly open the floodgates for possible claims. However, if \u201ccommercial gain\u201d is a high threshold, then it could block many viable claims.<\/p>\n Additionally, judicial decisions could chill the development of valuable AI, machine learning, and virtual avatar technology. If wide-ranging regulations are brought into this space, creators may be unwilling to innovate or dedicate time to new creations for fear of litigation.\u00a0 The technology itself may move away from the entertainment space, hampering beneficial uses.<\/p>\n <\/p>\n \u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 D) Postscript on Other Aspects of the New York Bill<\/em><\/p>\n Other aspects of the bill are ancillary to its application in the entertainment space\u2014but could still prove very important. First, the New York bill creates a separate provision, \u00a752c, to handle nonconsensual, sexually explicit depictions. The issue of nonconsensual sexual virtual avatars is serious, daunting, and presents life-changing harm to individuals involved. I commend the New York legislature for taking a stance against these uses. For those interested in these issues, I highly recommend the work of Danielle Citron<\/a>.<\/p>\n Second, the New York bill explicitly recognizes the right of publicity as a transferable, descendible, property right. This is a unique categorization and is debated<\/a> within the right of publicity sphere. Others<\/a> have categorized the right of publicity as a privacy right, while others have categorized it as an intellectual property right. As virtual avatar legislation becomes increasingly commonplace, the different ways these rights may be categorized could create disconnects and conflicts among different legal frameworks.<\/p>\n <\/p>\n
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