As deepfakes go legit, the potential issues are endless

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Jordan Heath-Rawlings For as long as they’ve been around, deep fakes have generally been seen as elicit. The stories you hear about them tend to involve digital likenesses of people used either for purposes of misinformation, impersonation, or just plain old malice like fake pornography. But there is a legitimate use for deep fakes, or at least there is a legal and practical use for them. And we can all debate the legitimacy of it. Here, as an example, is a Russian cell phone commercial. And one of the voices that you hear starring in it belongs to Bruce Willis, allegedly Mississippi. It’s not actually Willis, of course, even though if you could see this commercial, you’d know it looks exactly like him. For one, Willis is battling aphasia, and he doesn’t act anymore. And also, if he did, why would he waste his time in a Russian advertisement? But a company struck a deal to map a digital version of Willis over another actor. Now, this is obviously a small example, but it is very instructive. There is, and there will continue to be a big appetite by brands to pay celebrities, actors, musicians, whatever, to appear in commercials and other gigs. And if someone like, say, Harry Styles just, for example, doesn’t want to waste time actually filming a Pepsi commercial, why shouldn’t he just license a deep fake of himself to Pepsi, collect the money, and not even have to work for it? Or maybe someone like Styles could sell his likeness wholesale the way other musicians have sold the rights to their entire music catalog. And then the real hairy Styles can retire and digital hairy styles can go on with his career. Why not? These aren’t exaggerations anymore. They are questions that Hollywood and other industries will have to answer. Who owns a likeness? Can you sell them wholesale? Can you rent them out? How? What does that do to the less famous actors or musicians who would otherwise have gotten those gigs? Like the Russian cell phone commercial, when somebody famous doesn’t even have to show up in person to take a gig or can work for their family long after they’ve passed away. How does that change everything? I’m Jordan Heath-Rawlings. This is The Big Story. Will Beddingfield is a London based staff writer at Wired. He covers Internet culture, meaning things like deep Fakes. Hello, Will.

Will Beddingfield Hi, how are you doing?

Jordan I’m doing well. I’m wondering if you can begin by describing this awkward Russian phone commercial that I’ve watched on YouTube. We played a bit of it in our intro, but just tell us what it’s like. Yeah, so the way I actually came to the story is the same way as a lot of people through seeing this viral clip of Bruce Willis tied to the back of a yacht. So Willis is among two hostages tied to this shipmast, and it’s next to a digital clock, and it’s kind of ticking down the seconds before a bomb goes off. And then a phone rings because there’s a 2021 advert for Megafon, which is a Russian cell network. And the other hostage has a conversation that results in Bruce Willis needing to respond. Mississippi in a thick Russian accent. I actually thought he was saying a Russian word, but my colleague, who speaks Russian, explains to me he’s just saying Mississippi. But anyway, it’s all pretty nonsensical, like most adverts, I guess. But I think the important point is that until he speaks, most people would be kind of tricked into thinking it was Willis.

Jordan How did Bruce Willis I guess I should put quotation marks around that term how did Bruce Willis end up in this commercial?

Will Beddingfield Well, in this case, deep fake tech was used to matt Willis face onto the face of another actor. The British newspaper The Telegraph reported that Willis, who’s retired because he has aspasia, had sold his performance rights to this deep fake company called Deep cake. This is actually wrong. Willis reps came out and said that he hadn’t done that and that he had no relationship with Deep Cake. And then my colleague Steven Levy spoke to the CEO of the company, and she said they never claimed to own witnesses future rights, but had an arrangement with Megafon, the Russian cell network. And this arrangement let Deep take use algorithms trained on 34,000 images from his earlier films to digitize his appearance. Basically, that’s where we ended up there.

Jordan Okay, just basically, is that legal? In that situation?

Will Beddingfield Yes. If Willis’s Reps have agreed with Megaphone and Megaphone they have agreed with Deep Cake. That is legal. I haven’t seen any evidence to suggest that this particular advertisement is illegal.

Jordan How good is the Deep fake in this commercial? Would a reasonable person, before hearing him say Mississippi in a Russian accent, believe it was Bruce Willis?

Will Beddingfield Yeah, I mean, my colleague spoke to the CEO of the company and she said, well, it’s also him. Younger. But I think unless you were a huge Bruce Willis fan, I’m less convinced you’d notice I’m not convinced you’d notice that it wasn’t Bruce Willis. So, yeah, I think it’s pretty good, particularly if you’ve got to remember that people might be watching this quickly on, like, a phone. So, yeah, no, I would say if you were studying it, yes, you can see it’s probably not him. And obviously he then speaks in a Russian accent, but I would say it’s pretty good, and a reasonable person would believe it was him.

Jordan So you mentioned that Deepcake created this by training, I guess, a program on photos of Willis. Can you just explain what does it take to make a Deep fake like that for a video? How does the process work?

Will Beddingfield Yeah, like I said, uses a Deep fake. I’m sure most people have heard of this tech by now, at least kind of vaguely, but basically it’s a pretty loose term applied to images or videos generated using AI that look real. So people might have seen Jordan Peele pretending to be Obama, or the fake video where President Zolensky announces his surrender. And we’re going to be talking about Hollywood later. I know, but Luke Skywalker in the book of Boba Fett, he’s played by a kind of appearance of Mark Hamill. And so in the Willis ad, we’re kind of talking about a video that uses machine learning algorithms to digitally impose one person’s face onto a video of another person. So, yeah, defects have been around for a while, but it kind of burst into the public consciousness in the past couple of years, I’d say. So for this one, Willis or his agency have agreed to it. They’ve presumably been compensated fairly for it. So this one is legal. What is the larger issue that this kind of technology can bring to movies, to commercials, to television, to anybody who is producing content based on these programs. Yes, again, to mention my colleagues piece, he kind of formulates this lead question, who owns Bruce Willis? And my piece is hooked off that question. And the point of all this is like that’s not just a concern for Bruce Willis and his reps, obviously. And it doesn’t just concern actors and actors unions either. For some experts it’s like this broader question that should worry all of us because it kind of pretends, this future where I think I put it in the piece, our identities could be bought, sold and seized. So who does own this is where it gets confusing to me and probably to a lot of our listeners. I would assume that I own the rights to my likeness, the rights to my voice, the rights to my face, even if there is video or obviously with a podcast, hours and hours and hours of audio out there that somebody could presumably use to recreate my voice. But I own that right. If that appears anywhere, I can sue. Well, I mean, I discovered writing this piece, the Law, and this varies pretty widely from country to country. And initially I was going to make because I’m based in the UK, I wanted to make a comparison in the US and UK. And there were differences. I’m going to keep it to the US. Just because we’re talking about Hollywood and even within the US. It varies state to state. So one of the experts I spoke to is very distinguished in this area. Jennifer Rothman has actually mapped out the differences between states on this website called the Right of Publicity roadmap. So if you’re listening in the US. You can check yours. So in America, people have a right under various state laws to limit unauthorized appropriation of their identities, particularly their names and likenesses. So the gold standard in this kind of commercial space is something called the right of publicity. And I can quote what that constitutes directly. It’s a law bar in unauthorized use of a person’s name, likeness, voice or other indicator of identity without permission, usually for a commercial purpose.

Jordan So stuff like in advertising or on products, what if it’s not for a commercial purpose? What if somebody wants to take someone’s likeness, Jordan Peele is Obama or whatever, and just have some fun with it, fart around on YouTube and not monetize it through the platform, just put it up there for people to mess with.

Will Beddingfield Yes. So there’s a lot of important what is here. So if someone just simply creates a deep fake of a person, that does not necessarily run foul of this right policy law. So like I said in the piece, if a Willis deep fake appears in an American ad for hamburgers, then Willis has got a claim that becomes viable where someone deep fakes Willis saying yippee Kaye in the back of a home movie on YouTube. That’s probably protected under the First Amendment. And the government can’t prohibit speech menu because the speech is false. It has to be this additional problem. And one of the additional problems could be defamation. So the deep fake is false, and it’s intended for viewers to perceive it as true. And so it’s purposely trying to cause harm to the target’s reputation, though you can actually get around that really easily, apparently, or go some way to get around it by just labeling it as a deep fake. Anyway, it’s an evolving area. There’s a lot of new legislation being passed here. For example, in 2019, California passed two measures. One, trying to protect people who’ve been featured in pornographic defects. And then another measure prohibiting the dissemination of unlabeled altered videos containing political candidates in sort of the weeks up to an election. Let’s talk about Hollywood now, just as an example of how this breaks out commercially, you mentioned Actors Guilds and unions earlier.

Jordan What do they think of this?

Will Beddingfield Obviously, if the money is right, it’s probably easier to pay for a deep fake of Bruce Willis to star in a Diehard sequel than it is to find another actor to replace Willis. Basically, the Screen Actors Guild, or SAG-AFTRA, who I spoke to about this, said their interest began with sports video games. So even if you’re just looking at those kind of blocky depictions of athletes in those games, it was kind of clear to them early on that the tech would develop in a way that you might be able to drop actors into movies just as you might with Footballers and FIFA. So one area where there’s a lot of worry as well, and Sarah O’Connor, the Ft wrote a great piece about this is audiobooks. It’s basically a serial equivalent, like replacing voice actors for lower profile books, perhaps not bestsellers yet, but putting voice actors at work, essentially. And then there’s this whole other field, which is fears around consent, basically consent and shady contracts. So the wrong consent given to the wrong company can lead to these kind of nightmarish scenarios. SAG-AFTRA told me they’ve seen digital image rights hidden in contracts, and they use the example, I don’t know of the Friends episode where Joey ends up in an STD ad, but he’s just gone for some modeling and he doesn’t realize that he’s going to be using an STD ad and then hilarity and used. But in the case of deepfakes or these, like, synthetic performances, this is even more serious because one of the experts I spoke to, he used the term, it allows an actor to be used. So essentially, like put words in their mouths. So, yeah, you’re an actor and you want to get into kids movies and you end up in an STD advertise. Joey, that might be a problem. TikTok actually had settled a legal case recently around this issue where a Canadian voice actor sued Bite Dance, that’s the company that owns TikTok because she’d done a voice performance for a Scotland based company for what she thought were Chinese translations. And then she ended up in TikTok’s TextToSpeech feature. So she soon never fell out of court. But I’m kind of making it sound like actors will hate deep fakes and this isn’t the case. There’s also the money, a big financial incentive that maybe we’ll come on to.

Jordan From reading your piece and your colleagues piece, the sense I get is that there’s two ways that this can be handled. One is if an actor, or, I guess any kind of celebrity, takes offers on a case by case basis and has representatives that look through the contract and they say, this is okay. It only gives you the rights to use it for this one megaphone commercial where you’re tied to a yacht. But then there’s also the case. And I guess the closest thing that comes to my mind is when musicians sell their entire back catalog, that you would just sell your entire digital likeness to a company for presumably some that you thought was fair, and they could then sell it to whoever wanted to use you in a commercial, a movie, whatever, right? What’s the difference? How are these two things different?

Will Beddingfield This is where the importance of transferability of publicity rights come in. And my understanding this took me a while to get, so hopefully I’m being clear is that transferability isn’t about authorizing uses of your identity for money. Like, I can still agree to a contract to something that I then regret it’s about ownership. So it’s your identity kind of conceived as alienable. So a transferable property, right, like patents or copyrights are able to be sort of bought and sold. And Jennifer Offering, who I discussed earlier, told me in the piece, it affects whether the right over a person’s identity is transferred and taken away from them and owned by a third party. So for SAG-AFTRA, this is important because if you turn publicity rights into a property interest, you can license your image out to a third party who has technological, financial, legal expertise, who can negotiate on your behalf and get you more money. Basically, I think they use an example, the law passed in New York in 2020, for example, which allows post mortem rights to be transferred. So for Rothman and for some of the other experts I spoke to, they worry this, like, transferability could lead to people losing control of their identity or personality, like in inverted commas there. So basically lead to firms owning your identity rather than just licensing it for a particular purpose. So roughly argues that we should shift our thinking about rights of publicity from thinking about publicity holders to identity holders. She has this interesting article where she kind of points out that the original calls for this kind of transferability were made in 950s by studio lawyers who wanted to control the movies acts appeared in and the products they endorsed. So she also argues more recently to use some more recent examples, that, like, student athletes kind of risk agents, managers, companies, even the NCAA hoovering up their identities so that they could extract future profit if these athletes become successful. So you have to sort of summarize on Earth a long answer that small actors, athletes, and average citizens, according to Rothman, are in danger of losing control, of signing away their own likenesses and voices to, as she says, like Xboxes, record producers, managers, even Facebook. So Rothman would argue that by making the right policy transferable, you make this kind of wholesale seizure of your identity possible and you kind of encourage this marketplace of identity. So that was a long answer. No, that’s good. It was fascinating. I guess my next question then is about that money, and it is about the nonhollywood superstars. I’m reasonably sure that Tom Cruise and the like probably have pretty good lawyers and they have enough money that they can very well pick and choose how deep into this they want to go. But you mentioned that not all actors agree with the Screen Actors Guild because there’s money involved. Right.

Jordan So what kind of pushback do these unions get from maybe the B list and C list actors who see an opportunity to do more work, essentially for a little bit more money?

Will Beddingfield Yes. Just to be clear, it’s the union that disagrees with Rothman. I want to make that clear.

Jordan Oh, I see.

Will Beddingfield But essentially, I’ve kind of made it sound like Sarah would hate deepfakes across the border and the act as part of their union. But that’s not really the case because they can see it as a sort of chance to make money. So the Screen Actors Guild view that even actors who don’t become famous, as you were just mentioning, their images or voices or whatever, still attain commercial value. So there are kind of opportunities here, and I’ll give some examples. An active voice could be used in an automated audiobook or their digital avatar can kind of go out to work for them while they’re doing other job, or if they’re ill or even if they passed away, their digital double could make money for their family. So that’s why actually SAG-AFTRA told me when I was talking to them, they don’t like the term deep fakes cause it has an association with pornography and they prefer the term digital double or AI generated. And actually Deep Cake who created the Bruce with his head, don’t like the name deep fake either. So that was a very weird choice for the name of company. So what kinds of legal challenges because this is ultimately, and I know we’re speaking about the US now and there’s different rules by states and there are different rules by country, but what kinds of legal challenges await as this tech gets better and better? I’ve viewed the Willis commercial. It’s one of those things that once you’re told it’s a deep fake, you can kind of see it. But listen, it’s just going to get better and better. So what are we going to be fighting over as this proceeds?

Will Beddingfield Obviously the deep fakes on our screens already. I mentioned earlier that Mark Hamlin, Boba Fett, and then yeah, is huge right now in the world. Exactly. In fact there are these deep fake fan bids that are better than the original standard. VFX. So that’s actually how the person who made the Luke Skywalker deepfake got hired. I believe he made a better one than Disney from an earlier episode. And then there’s also examples actually of the Irishman. I know a lot of people were sort of mean about the DA and that and then people use Deepfakes and YouTube to supposedly improve that less convincing VFX. So I mean, just keeping it to Hollywood short term, we’re kind of looking at expansion of all the worries I kind of discussed earlier. You know, bad exploits, the contracts, replacement of voice actors, etc. Long term there’s like this real fear that the more bad contracts these actors sign, the more their acting skills become unnecessary because the AI is improving imitation, et cetera, and kind of trained on their likenesses. Then you’re kind of looking at, you know, you might perform in a franchise and they don’t need you anymore.

Jordan And outside of Hollywood, I mean, thinking about deep fake revenge porn or the landscape, I think the listeners can probably come up with some pretty grim scenarios themselves. Is there anything coming up in the next year or two? I know it’s impossible to predict the future with the technology like this, but I guess what I’m wondering is how far are we away from something that really sets the precedent around this and kind of brings all rights about it into sharp focus? There’s going to be one, right? Like if it’s not this Bruce Willis one, somebody’s going to license the likeness and image of a dead celebrity and bring them back and make them star in something like what’s next?

Will Beddingfield Well, I think maybe we’ve come back to this kind of contention between Sagafra and some of the experts I spoke to in the piece and I think that might be an example. Like I said, the Screen Actors Guild’s position is focusing on this transferability aspect is kind of dystopian scaremongering, and all the bad stuff we discussed just now can pretty much happen anyway by signing a bad contract. And so they kind of say there are no instances, they claim, of like the right to publicity being involuntary transferred during anyone’s lifetime. And they actually use the example of OJ. Simpson, whereas argued by the family of his victims that the court should transfer his publicity rights wholesale and the court refused this, so it didn’t transfer his rights to the victim’s family. And Rothman argues in her book that by making the right of publicity transferable, this wouldn’t have been possible and the judge would have had to agree and in some senses OJ. Would have been owned and they could have literally had led to them governing his public appearances. So in terms of coming back to your question in terms of cases to look at any case where you can see these publicity rights being sort of seized in that way, I would say look out for.

Jordan Will, thank you so much for this. It’s a fascinating topic and it will be incredibly interesting to see where this goes over the next five years.

Will Bettingfield Thanks. I hope I was clear. I know it’s a complicated one.

Jordan Will Beddingfield writes for Wired in London. That was the big story. This is the last you will hear from me personally for one week. Not because I’m taking a well-deserved, vacation, though I might sneak off for a day or two, but because I’m so excited to announce that next week we are partnering with our friends at the Narwhal. The Narwhal is an independent publication, a team of investigative journalists that do deep dives on climate stories. Stories about the natural world in Canada and stuff you won’t find anywhere else. We’ve done this with them before because we think they are the best at covering climate and climate policy in Canada. That is a hard subject to COVID but it really needs eyes on it. So next week you may remember Fatima Syed. She also works at the Narwhal. She will be sitting in this chair as guest host and she will have some of her amazing colleagues telling you stories about Canada and climate that you won’t hear anywhere else. At least not like this. I really hope you’ll tune in. I’m going to be listening every single day, so take it away, fatma. You can of course find this podcast at the bigstorypodcast dot CA. You can find us on Twitter at the big story. FPN. You can email us hello at the bigstory podcast dot CA and you can call us, leave us a message 416-935-5935. You’ll see this podcast anywhere you go to get them. And when you do, make sure you subscribe or follow a rate or review or whatever. We appreciate all your support. Thanks for listening. I’m Jordan Heath-Rawlings. Enjoy next week. I will be back the following Monday.