Who owns your face and your voice?
Generally, you do. But the question is getting a lot more complicated now that artificial intelligence can capture you from material that’s on the internet and rapidly produce a digital likeness that can do all sorts of things.
Many of those things make money. Digital likenesses can appear in movies, TV shows and commercials, as well as monetized snippets on Instagram, Facebook, X, YouTube, Rumble and probably five more platforms that could have a million users by noon tomorrow.
So, whose money is that?
This is a fascinating question that touches on blood-sucking. That’s not a criticism, it’s a 1979 California Supreme Court decision about Count Dracula merchandise.
In 1930, actor Bela Lugosi signed a contract with Universal Pictures to play Dracula. He wasn’t the first or last actor to play the vampire aristocrat, but the performance was so iconic that his voice and likeness became a valuable and marketable commodity. Decades later, when Universal licensed monster movie characters for merchandise, the face of Dracula was Bela Lugosi.
Lugosi’s widow and son sued Universal over the unauthorized use of the actor’s image. The state Supreme Court squabbled over whether the right to market Lugosi’s image was included in the original contract, whether the issue was one of property, publicity or privacy rights, and whether the rights had died with Lugosi or transferred to his heirs, undead.
A majority of the justices concluded that the right of publicity that belonged to Lugosi when he was alive did not transfer to his heirs. But the California legislature soon stepped in with a new law to establish that the right to profit from the exploitation of an individual’s likeness, with some exceptions, is a right of publicity that survives death.
In 1999, after the producers of video dance lessons used movie clips of Fred Astaire without the permission of his widow, Robyn, the legislature passed another law to curtail the exceptions in the earlier law.
But at the time, lawmakers did not think to include in the law any limits on using artificial intelligence to generate an entirely new performance by a deceased celebrity and make it available on a YouTube channel.
That’s what happened in 2024 to the late George Carlin, when the hosts of the “Dudesy” podcast released a one-hour “comedy” special titled, “George Carlin: I’m Glad I’m Dead.”
Carlin’s family was not amused.
The Dudesy team claimed that the performance was created with generative artificial intelligence. Carlin’s estate filed a copyright infringement lawsuit in federal court. One of podcast hosts then told the New York Times that the jokes were actually written by the other podcast host, not by an AI-generated Carlin.
Did they violate copyright law? Property rights? Publicity rights? Exactly what was created here, who created it, and who has the right to monetize it?
The case was settled, so a court didn’t have to decide. But it prompted the union that represents performers, Screen Actors Guild-American Federation of Television and Radio Artists, known as SAG-AFTRA, to sponsor legislation in California to broaden the protection the law gives to heirs of people whose valuable performances have suddenly become unlimited AI training material.
Assembly Bill 1836, which takes effect on January 1, 2025, establishes a right to sue over the unauthorized uses of digital replicas in “an expressive audiovisual work or sound recording” without the prior consent of the person who controls the rights to the deceased individual’s likeness.
Two more laws taking effect on January 1 extend financial protection to minors whose parents make money by posting videos of their kids on social media. Senate Bill 764 requires parents who “vlog,” defined as posting content for compensation, to put a share of the earnings into a trust account for the child.
Assembly Bill 1880 expands the 1938 Coogan Law, later updated into the 1999 Coogan Act, named for child star Jackie Coogan. The law requires that 15% of all gross earnings of a minor under contract for artistic services be set aside in a trust for the minor’s benefit. AB 1880 adds the category of “influencer” to the employment contracts covered by the law.
California is battling the future to protect performers. Bravo.
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