Recently, there has been increasing talk about the problem of videos featuring celebrities or, more precisely, their deepfakes, which have begun to appear in various advertisements and campaigns, with or without their permission. Digital simulations of entrepreneur Elon Musk, actors Tom Cruise, Leonardo DiCaprio, and many other well-known faces have appeared in advertisements, mostly without their knowledge.
The machine learning company Paperspace Co. recently released a promotional video for its company featuring Cruise and DiCaprio, with neither of the two having spent a second filming that campaign, nor have they ever agreed to support the company in such a way. However, this did not prevent Paperspace Co from promoting itself with these world-famous faces. Of course, the promotional videos of that company were created using deepfake technology, which employs computer-generated representations to make Hollywood and business dignitaries say and do things they have never said or done.
Although many of these deepfake ads will not deceive a vigilant viewer or at least someone who understands technology and realizes that DiCaprio, Cruise, and similar figures will not give their likeness for free to just anyone, some ultimately remain deceived. Therefore, analysts believe that the increasing acceptance of deepfakes could profoundly reshape the media and marketing landscape, and it has also opened up new legal and ethical questions.
Authorized and Unauthorized
Of course, if someone agrees to have their likeness included in some marketing campaigns or promotional videos using deepfake technology, there are no problems – this practice is called authorized deepfake. Marketing experts say that authorized deepfake would allow celebrities and well-known figures to appear in campaigns without the need to physically show up on set or in front of cameras, which would reduce costs and open new creative possibilities for those running campaigns, while also saving actors some time, which means a lot to everyone. However, the problem arises with unauthorized deepfakes because, as things stand now, it falls into a gray legal area, so industry experts agree that celebrities should fight against the spread of unauthorized digital reproductions of themselves and manipulation of their brand and reputation.
American lawmakers began addressing the phenomenon of deepfakes in 2019 when the state of Virginia banned the use of deepfakes in so-called revenge pornography. Soon after, Texas banned them in political campaigns, and California banned deepfake technology in both cases. Last year, the U.S. National Defense Authorization Act mandated the Department of Homeland Security to produce annual reports on the threats posed by this technology. So while some direction towards regulation has been initiated, there is still no law addressing the use of deepfakes in advertising.
Low Probability of Lawsuit
Aaron Moss, head of the litigation department at the law firm Greenberg Glusker, says that celebrities have had some success suing advertisers for unauthorized use of their images under so-called publicity rights laws. However, deepfakes did not exist at that time, and he cites Woody Allen’s $5 million settlement with American Apparel in 2009 due to the director’s unauthorized appearance on a jumbo billboard advertising that clothing brand.
Recently, the startup reAlpha used Elon Musk in its deepfake video where Elon explains the concept of crowdfunding while in a bubbly bath. The first Musk video was released a few days after reAlpha launched its public fundraising offer, and the video ultimately garnered 1.2 million views on YouTube and attracted interest in reAlpha from ’22 thousand people in 83 countries,’ said Christie Currie, the marketing director at the mentioned company. She added that the company ‘avoided directly linking the video to its fundraising efforts.’
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– There is always a small risk with any type of parodic content, but generally, if it is intended to be educational, satirical, and if you have disclaimers in place, there should be no problems, as long as you do not force monetary transactions – emphasizes Currie.
It is a thin line. The likelihood that someone like Musk would sue a startup for a deepfake video is low, and small startups might decide that the risk is worth the significant publicity it would generate for them, believes attorney Moss. However, the ease of creating deepfakes means that some celebrities could soon find themselves in a pile of ads showcasing their unauthorized but very convincing likenesses, Moss adds. He concludes that any attempt by aggrieved parties to attack small startups or individuals creating deepfakes would be ‘death by a thousand cuts.’
Namely, the language in contracts written years before the technology existed can be vague enough to allow companies to use existing footage to create new deepfake videos. Therefore, actors, athletes, and other celebrities will begin inserting clauses that prohibit any new such use of their likenesses in all commercial contracts they sign. Companies currently most often seek deepfake videos of celebrities for internal use for training, communication, or entertainment, but not for advertisements, notes Daynen Biggs, owner of Slack Shack Films. He reveals that client requests can sometimes be quite bizarre.
