Author: Richardus Krisna Dewandaru Editor: Ayom Mratita

The film industry and artificial intelligence (AI) machinery have always been marked by complicated, tension-filled affairs over creativity and technological change. Recently, it reached another critical juncture when the likeness of the late actor Val Kilmer was proposed for use in the film As Deep as The Grave. According to director Coerte Voorhees, the Doc Holiday actor’s estate has approved the project and is fully cooperating in creating the posthumous appearance using state-of-the-art generative A [1]. While this step aligns with new regulations achieved after the 2023 The Screen Actors Guild – American Federation of Television and Radio Artists (SAG-AFTRA) strikes, the situation still leaves public and industry alike in a skeptical outlook. Are these regulations sufficient enough to prevent further unauthorized use of likeness? More fundamentally, do deceased actors truly have rights to their own likeness in the age of generative imagery?

While the use of AI technologies have been proven to simplify production phases and reduce the costs required, they have also significantly raised concerns on matters of ownership and authorship. When AI started to take the spotlight, big companies were so eager to feed this machine all kinds of datasets so that it can learn and generate art, videos, and audio projects [2]. But artists have spoken that the datasets used to train AI generators are not only come from the public domain, but also copyrighted arts [3]. One may delve into the case of Greg Rutkowski, a Poland-based illustrator whose name has been used in AI prompts for 93,000 times. One time while he browsed for artworks under his name, many paintings unbeknownst to him popped up [4]. The loss of ownership is inevitable, as many artworks may be used to create generative arts against the author’s will. This may blur the boundaries between what is considered truly ‘creative’ and what is merely remix or synthesis [5].

But the situation stretches more than paintings. The development of deepfakes and other synthetic technologies capable of creating hyper-realistic digital likenesses also warmed up the already heated concerns. Recent technological advancement makes it possible for anyone, even generative machines, to be the source of controlling facial aspects of a person and put it into another video in a photo-realistic way [6]. Though it may be beneficial to represent a person’s deliberate absence under consent, it can also prompt harmful ways to create one’s existence against the wish of the person portrayed [7].

This situation becomes alarming when it comes to the case of actors appearing in films, televisions, and other visual-based media. Even long before the birth of hyper-realistic AI, a person’s likeness has always been the industry’s complicated matter. It takes us back to the case of Crispin Glover, Back to the Future (1985) actor who sued Universal Pictures for using his likeness through another actor, a heavily-make up Jeffrey Weissman [8]. Now, likeness isn’t merely part of make up, it is a unique digital asset the industry has already gained from each actor. The question of who actually holds the rights to the final product associated with each contribution has extended into the realm of property law and the recognition of artistic merit [9] Even when consent and collaboration are involved, actors might still face the possibility of the media industry reusing, altering, or even commercializing their likeness without their knowledge, profiting from it in perpetuity [10].

These concerns intensified following the industry’s move to ‘resurrect’ deceased actors back to the screen. Most notably was the case of Peter Cushing, a Star Wars actor who died in 1994, was resurrected through deepfake AI in Gareth Edwards’ Rogue One: A Star Wars Story (2016). This decision has sparked controversy, as Peter himself had spoken out against his portrayal through special effects years prior to his death [11]. Three years later, another backlash emerged when James Dean, a Hollywood legend passed away in 1955, to be featured in 2019 film about the Vietnam War via full-body Computer Generated Image (CGI) [12]. Though the late actor’s family was in full support, ethical questions remain looming in the shadows. The move was deemed to further undermine the rights of the deceased. It’s because according to the US Second Restatement of Torts, there are already no legal actions for violating the privacy of a deceased person, as they are neither vocalize or experience any harms related to it [13]. In short, any rights of our property die when we die. While the person’s legitimate rights have been taken away, the industry gathers their likeness as a ‘core commodity’ [14].

These unethical decisions have prompted actors, writers, and other entertainment workers alike to take to the streets, mobilizing the phenomenal SAG-AFTRA strikes from July to November of 2023. The ultimate goal is to keep human creativity in the center of production, forcing studios to prioritize human-created content while requiring the use of AI-generated content to be under control of the creative writers instead of studios’ demands [15]. Among the big issues of AI integration and its destabilizing damage, the strikes specifically concerns the use of digital replicas known as Employment Based Digital Replicas (EBDR) and Independently Created Digital Replicas (ICDR). EBDRs are known as generated imageries created with the actor’s participation using scans or other related tech, while ICDRs are independently produced digital replicas based on existing materials.

According to post-SAG-AFTRA strikes regulations, the use of likeness in EBDR must be under consent of the actors featured. Furthermore, actors will be paid for the initial scans, days to work in person, and residual payments from rebroadcast and reuse. In the case of ICDR, consent provisions aren’t as strict. Actors will need to negotiate payments on residual appearance on a case-by-case basis [16]. All in all, actor consent will be a crucial point for the future use of likeness. And on the matter of posthumous performance, studios are now forced to seek permission from their respective heirs to use any remaining footage of the deceased for incoming projects.

While considered an important development for the preservation of human artistry, the post-strikes regulations have yet to answer the ethical question of “re-employing” the dead. It takes us to critically reading this situation through the lens of spectral labor, which stands for how the dead are made to work again through the data kept by their “puppeteers” [17]. These so-called “puppeteers” had been used to describe multiple parties controlling the digital remains of individuals. Among those are studios who have a vast amount of biometric archives to be used for future production and licensing. Biometric archival changes the meaning of art itself. What’s known as live performances are now disembodied work forces that are reusable and extractable [18]. Instead of leaning more to preserve the deceased’s rights of their own work, the regulation positioned itself as the ‘grand vehicle’ for industry to gain more from the dead.

Sidelining the deceased’s rights seems to stem from the fact that most publicity rights in the US themselves are grounded from Second Restatement of Torts as it already mentioned. As the deceased are no longer capable of experiencing any harms or wrongdoings, their rights are being indirectly undermined. This climate of laws is also supported by the US property rights. Current common law for posthumous or postmortem property rights haven’t been able to distinguish life and death, as the deceased’s property still receives the same publicity treatment as the living [19]. Though in some states posthumous property rights have been recognized and protected from further commercialization, most of these laws are still failing to notice that death changes the moral and legal landscape.

The post-strikes regulations are also vulnerable to the fastly growing AI technologies. Despite the recent agreements stating basic protections for artistic commercialization, it is still unable to address the matters for a longer term [20]. The integration of human artistry and AI artworks is increasingly converging, yet the current post-strikes regulations haven’t been in pace with collaborative AI authorship. Under the US law, original works that are considered to be protected by copyright are the ones that were created originally by human hands and minds [21]. Therefore in the case of Val Kilmer, and other deceased actors alike, it becomes confusing whether the performance will honor Kilmer or simply the technology used in his name [22]. Synthetic replication thus intersects into broader discussions of personhood, legacy, and emotional authorship that put creative workers as a “site of digital vulnerability” [10].

Reanimating deceased actors as digital replicas is always problematic. The criticism goes far beyond credits and financial arrangements. Generating AI-based performance without the direct consent of each actor essentially robs them of their creative ownership and authorship. It goes against the considerable privacy rights that should be part of each one even when they’re gone. Val Kilmer, like many other deceased actors facing similar circumstances, has no control of their own appearance and image. Struggles and progress had been achieved, but it still not yet sufficient enough to legally oppose the exploitation of one’s posthumous artistry works by the hands of the industries. The regulations, even after the phenomenal SAG-Aftra Strikes, still leans more in accommodating further commercialization instead of preserving the deceased’s privacy rights, as the broader climate of laws seems to have no such interests in distinguishing the life and the dead.  

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