As generative AI brings dead celebrities back to life, we must rethink the rights of the deceased

Changes are due in privacy, consumer protection and property laws, University at Buffalo legal scholar Mark Bartholomew says

Release Date: January 24, 2024

Mark Bartholomew.

Mark Bartholomew

“The difficulty in discerning who is alive and who is dead on our computer screens thanks to AI brings up important issues of consumer protection and what should happen to our reputations after we are gone ”
Mark Bartholomew, professor
University at Buffalo School of Law

BUFFALO, N.Y. – In the United States, legal rights protecting the reputation of the deceased have traditionally been limited.

That’s because once you’re dead, the theory goes, you’re incapable of being embarrassed or emotionally harmed.

The rise of artificial intelligence, with its ability to easily bring dead celebrities and others back to life in ways nearly identical to their living presence, is prompting a shift in this long-held legal concept.

In a “A Right to Be Left Dead,” an article scheduled to be published in the California Law Review, University at Buffalo legal scholar Mark Bartholomew argues a “new calculus” is needed, one that protects the deceased against unauthorized digital reanimation.

The article, he writes, “interrogates the need for a right to be left dead and takes some preliminary steps towards defining its contours, chief among them an awareness that an individual right to prevent unauthorized reanimations of the dead must look very different than the existing privacy, consumer protection, and property laws marshalled against unauthorized invocations of the living.”

An expert in artificial intelligence and copyright law, Bartholomew answered questions on how AI has blurred the line between the living and the dead, and how this could reshape multiple areas of the law.

Q: AI blurs reality with digital fantasy. What problems – ethical, legal or otherwise – do you see with this?

A: I’m in favor of giving creators as many tools as possible for making new art. No need to go back to the silent era of film or embargo all computer-generated artwork. Sometimes there is a panic over new creative practices just because they are different. On other hand, the difficulty in discerning who is alive and who is dead on our computer screens thanks to AI brings up important issues of consumer protection and what should happen to our reputations after we are gone.

Q: In terms of reputation, what do we owe people after they die and what does AI have to do with it?

A: This is something that the legal system has already thought a lot about. In general, the answer the law has come up with is that once you are dead, you are incapable of feeling embarrassment or other emotional harms. This means legal claims for such injuries to reputation — think, for example, of suing someone for defamation — are not available to the dead (or their families). I actually believe this makes a lot of sense. We don’t want a lot of lawsuits protecting the reputations of the dead and thereby stifling free expression among the living.

Q: Does this mean that anyone can use AI to recreate a person who is no longer living?

A: Definitely not. The dead do have some rights. When you are using AI to have a dead person sell things and people are being fooled about that person’s relationship to your business, that becomes a consumer protection issue. And, in most states, including New York, if you want to bequeath the right to commercially license to your name and likeness to your heirs after you die, the law will recognize that transfer of rights for a limited post-mortem period. The point here is that the rights of the dead are limited, not that they are non-existent.

Q: Is this digital reanimation of the dead and others, including living celebrities, happening very often?

A: Yes, it’s becoming more and more frequent. A-list celebrities like Taylor Swift and Tom Hanks lament bogus ads popping up online that feature their digital dopplegangers. There have been enough examples of deceased actors being reanimated to appear in new films that the actors’ union made restrictions on the practice central to its four-month strike last year. For the rest of us, new businesses are being launched (and related patents are being secured) for chatbots that can continue to speak in our voice and channel our personalities after we die.

Q: I can see someone wanting to keep a digital version of a family member to talk to after they have died. But what if the decedent doesn’t want this to happen?

A: One thing I would suggest is to take advantage of the digital tools that are already out there for restricting use of your online information after death. They are not always highly publicized or easy to navigate, but Google, Instagram and other platforms allow you to request the deletion of your accounts and the material contained therein. This won’t erase every trace of the digital you out there — that is nearly impossible — but it makes it much harder to produce an AI version of you against your will.

Q: Artists such as Sarah Silverman and media organizations, for example The New York Times, have filed copyright lawsuits against AI companies. What is at stake here?

A: There’s a lot at stake here, nothing less than the business models of new platforms like ChatGPT that have already become familiar to us all. From the perspective of the technology companies, copyright lawsuits jeopardize their ability to use vast arrays of training data to engineer better and better results in response to our prompts. For the artists, they worry about AI platforms copying their work without permission and then giving consumers the means to generate art in their signature style for free. It all comes down to how courts decide to apply the notoriously unpredictable defense of copyright fair use. Overall, I think the law favors the AI companies more than the artists, but I wouldn’t bet my salary on it.

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