Rethinking the rights of the deceased

Concept of an AI-generated Jimmy Stewart.

The rise of artificial intelligence, with its ability to easily bring dead celebrities — such as actor Jimmy Stewart — and others back to life in ways nearly identical to their living presence is blurring the line between the living and the dead.


Published January 25, 2024

Mark Bartholomew.

It’s 2024, and you have a problem sleeping. But this is not your parents’ insomnia. Sit back and listen to Jimmy Stewart reading a bedtime story. But since it’s now 2024, what you’re hearing is not an old recording of the star of “It’s a Wonderful Life,” but rather a voice generated by that ubiquitous modern force: artificial intelligence.

Want to hear the French torch singer Edith Piaf? Find the new biopic. Listen to her sing one of her signatures, “La Vie En Rose.” But it’s not Piaf. It’s an artificial intelligence version, something NPR called “La Vie En Rose AI.”

Missing a loved one who has gone to their great reward? Ask a chatbot version of that person what they would think about today’s politics or last night’s ballgame. Thanks to AI, the chabot will answer in the voice and personality of the departed.

UB law professor Mark Bartholomew, an expert in intellectual property and law and technology, has this digital sleight of (electronic) hand in his academic wheelhouse. In ”A Right to Be Left Dead,” his soon-to-be published article in the California Law Review, Bartholomew questions whether a “new calculus” is needed at a time when anyone can be reanimated and made to behave in a manner indistinguishable from their living presence.

It’s an article that interrogates the need for a right to be left dead and takes some preliminary steps toward defining its contours.

“To the extent legislatures and courts are beginning to grapple with the nascent problem of digital reanimation,” writes Bartholomew, “they have failed to account for the most fundamental dividing line in existence — the line between life and death.”

UBNow spoke with Bartholomew about how technology has blurred the line between the living and the dead, and what that means for everyday life.

AI technology has blurred reality with digital fantasy. What problems — ethical, legal or good taste — do you see?

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 panic over new creative practices just because they are different. On the other hand, difficulty in discerning who is alive and who is dead on our computers, thanks to AI, brings up important issues of consumer protection and what should happen to our reputations after we are gone.

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

This is something the legal system has already thought a lot about. Generally, 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, thereby stifling free expression among the living.

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

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 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 the rights of the dead are limited, not nonexistent.

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

Yes, it’s become more frequent. A-list celebrities like Taylor Swift and Tom Hanks lament bogus ads popping up online featuring 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 last year’s four-month strike. For us, new businesses are being launched — and patents secured — for chatbots that can continue to speak in our voice and channel our personalities after we die.

How do these chatbots work?

We all leave copious digital trails from navigating everyday life. From our social media posts, emails, texts and smart-speaker requests come a vast pool of electronic information to generate digital replicas of us after we are gone.

What if we object? Can we do anything to stop it while we’re still alive?

Take advantage of digital tools available for restricting use of online information after death. They are not highly publicized or easy to navigate, but Google, Instagram and other platforms allow you to request the deletion of your accounts and the material therein once you die. Erasing every trace of the digital is nearly impossible. But it makes it much harder to produce an AI version of you against your will.

What do we make of this technology invasion? How should we as average people greet these changes?

The present use of the term AI is often imprecise. But in the big picture, AI refers to machines performing cognitive tasks we traditionally associate with human minds. We shouldn’t presume AI is bad just because it replaces or surpasses humans — that’s a common paradigm for technologies. But we shouldn’t outsource our daily lives to AI without being aware of the tradeoffs. If after careful deliberation that awareness reveals social costs, then we should ask our lawmakers to set reasonable guardrails. AI isn’t necessarily bad, but it will be if we just allow inertia to govern its spread.