Privacy Policy
Code of Ethics

Afterlife Deepfakes—Postmortem Right to Publicity and the Right to Respect for the Deceased

There are already a few examples of deepfakes being used in films to replace an actor’s or actress’ voice or even face after their death. For example, in 2019 a new movie, Finding Jack was announced, starring James Dean, an actor who died in 1955. The moviemaker will use deepfake technology to virtually resurrect Dean’s image, and make it his fourth movie, more than 60 years after his last one. His family expressed their support towards the project. Regarding the usage of deepfake voice, in the 2021 documentary, Road Runner, late celebrity chef Anthony Bourdain’s voice was brought to life with deepfake technology. The chef’s wife had not given consent to this and was upset after the release, even though the spoken words were Bourdain’s words, he might as well have said it himself. However, it is important to mention, that not all digitally resurrected actors are featured using deepfakes. Most moviemakers use CGI technology to animate deceased actors. For example, in Fast and Furious 7, Paul Walker’s scenes were made with the help of CGI and his brothers. The faces of his two brothers were similar enough for the VFX artists to work with, and since their physique was also very similar to their late brother’s, the artists had to work only with the faces.

But what is the problem with postmortem deepfakes? Ethically speaking, it might cause emotional injury to the deceased’s relatives and make the audience uncomfortable. Especially, when the product is not so perfect, rather uncanny. Talking about legal complications, in common law, the unauthorized usage of deepfakes violates the right of publicity, which is the right of an individual to control the commercial use of their identity, such as their name, image, likeness, or other unequivocal identifiers. However, not every country recognizes this right. For example, there is no such thing in the United Kingdom, whereas in Italy and Spain, it is protected by the Constitution, in Sweden, it is in a separate act etc. In the case of postmortem deepfakes, the right to publicity must be recognized after death, too, which narrows it down even further.

In the following, I will discuss the US legislation, because movies with the biggest budgets, that use cutting-edge CGI and other technologies are made in Hollywood, and after that, for comparison, I briefly present the Hungarian legislation.

Not surprisingly, there is no unified approach regarding the postmortem right to publicity even within the US. Currently, 23 states recognize post-mortem right to publicity. The duration of the right varies from 10 to 100 years. The retroactivity also differs, for example, California’s law applies to individuals who die before the enactment of the law, whereas in other states it does not.

Because it would be very lengthy to discuss all of them, let’s have a look at the newest state-level bill from New York. The new bill, introduced in 2020, creates the new post-mortem right of publicity extending for 40 years after death for “deceased performers” and “deceased personalities” who die when domiciled in New York (they chose New York to be their permanent home, they had a permanent home in New York, or they intended to return to New York after being away), provided they transferred the right or have heirs. Deceased performers include actors, singers, dancers, or musicians, and deceased personalities are individuals whose name, voice, signature, photograph, or likeness has commercial value. A post-mortem right of publicity extends this right to the deceased’s heirs and is a freely transferable property right. This means that designated successors may prevent the commercial use of a deceased individual’s name or likeness without consent. For deceased personalities, the new law only prohibits unauthorized use of their name or likeness for advertising, selling, or soliciting purchases of products or services. For deceased performers, the law only prohibits digital replica use in scripted fiction or live music. It needs to be likely to deceive the public into thinking the use is authorized by the deceased. Thus, if the work contains a disclaimer stating that the digital replica is unauthorized, the use is not considered deceptive and, therefore is legal. The bill creates a compromise between the interests of the entertainment industry and the interests of the heirs since it is not prohibited to mention a personality or performer after their death in a piece of art or news, only the commercial exploitation is.

The bill introduces the term digital replicas (which means it applies to other technological solutions such as CGI besides deepfakes). “Digital replicas” are “newly created, original, computer-generated, electronic performance by an individual in a separate and newly created, original expressive sound recording or audiovisual work in which the individual did not actually perform, that is so realistic that a reasonable observer would believe it is a performance by the individual being portrayed and no other individual”. This means that with this law, New York becomes the first state in the nation to explicitly extend a person’s right of publicity to deepfakes. Professional actors and their guilds have been lobbying for a long time to protect their likenesses from unauthorized postmortem use, especially after technological advancements, such as deepfakes appeared.

In Hungarian law, there is no such thing as the right to publicity. However, there are personal rights, regulated in the Civil Code.[1] Among many others, one of them is the right to one’s own image and recorded voice. According to this right “recording a person’s image or voice and using such a recording shall require the consent of the person concerned” (except if the recording was made of a crowd or an appearance in public life).[2] People who had their personal rights violated can claim various no-fault sanctions. These include: the establishment of the violation by the court; the prohibition of the person committing the continuous violation; giving appropriate satisfaction and providing for its publicity at own expense; restoring the situation existing prior to the violation, and destructing the things produced through the violation or the depriving such things of their unlawful character; relinquishing the material gain obtained by the violation.[3] They might also claim a one-sum grievance award, regardless of the material harm.[4]

Regarding postmortem personal rights, Hungarian law is of the opinion that the legal competence of a natural person ceases upon death. A non-existent person cannot have any rights, and therefore certainly no rights as a person. However, there is a right to respect for the deceased. In fact, the Civil Code understands the right to respect for the deceased as if it were a personal right of the survivors to preserve the memory of their deceased. In theory, every personal right can be enforced if it violates the memory of the deceased, including the right to one’s own image and recorded voice.[5] Therefore all the non-fault sanctions can be claimed by the heirs, whereas grievance awards cannot.

So, postmortem deepfakes can violate the right to respect for the deceased, and the material gain achieved by the violator, can be claimed by the heirs just like in countries where the postmortem right to publicity exists. However, in the film industry, it is very unlikely that any filmmaker would feature a deceased actor without consent, risking the mentioned sanctions.

[1] Act V of 2013 on the Civil Code, Book Two, Part Three

[2] Act V of 2013 on the Civil Code, Section 2:48

[3] Act V of 2013 on the Civil Code, Section 2:51

[4] Act V of 2013 on the Civil Code, Section 2:52

[5] Ptk. 2:50. §-ához: Kegyeleti jog. In: Gárdos Péter, Vékás Lajos (szerk.): Nagykommentár a Polgári Törvénykönyvről szóló 2013. évi V. törvényhez. Budapest: 2021.

Gellért MAGONY is a student at the Faculty of Law and Political Sciences of the University of Szeged and a scholarship student of the Aurum Foundation. His main area of interest is the relationship between the digital world and law. His previous research has focused on the relationship between social networking sites and freedom of expression and the statehood of metaverses. He is currently researching social influence through deepfakes.

Print Friendly, PDF & Email