Hollywood is Forcing Us to Consider the Ethics and Morality of Our Digital Likenesses

“The future of entertainment will be the future of everything,” says John Rogers, creator of Leverage and The Librarians... 1

Hollywood writers and actors are on strike now, and one of the drivers is the proposed use of Artificial Intelligence to replace them. AI is no longer a futuristic construct for them, but an imminent, existential threat. Their very livelihood, ownership of their creative work, and even of their own bodies & voices are at stake.

A Quick Side-Trip about Screenwriters' Concerns

 Hollywood studios have been using AI for years to generate scripts and characters that are used for movies and shows, leaving some writers to play the role of refining content generated by machines. And, those writers do not share much in the revenues when the work they contributed to makes money for the studios. That is an interesting topic to spend some time on, but for the purposes of this article I’ve chosen to focus on how AI is potentially impacting actors.

The Core AI Threat for Actors: Ownership of their Digital Likeness

At the time of this writing, and one of the things that triggered the SAG-AFTRA strike, there is a significant dispute over studios’ desire to scan an actor and use their digital likeness in the studio’s works. For most actors, in exchange for their digital likeness, there will be for a flat fee with no “residuals” (bonus payments based on the success of the work). Initially this is being targeted at background extras.

SAG-AFTRA's national executive director and chief negotiator, Duncan Crabtree-Ireland, said in part, "This 'groundbreaking' AI proposal that [the Alliance of Motion Picture and Television Producers] gave us yesterday, they proposed that our background performers should be able to be scanned, get one day’s pay, and their companies should own that scan, their image, their likeness and should be able to use it for the rest of eternity on any project they want, with no consent and no compensation."

According to Reuters, the AMPTP doubled down after the SAG-AFTRA press conference by stating that the union's claim is false. As the outlet described, "[Studios] said the current proposal would restrict the use of the digital replica to the motion picture for which the background actor is employed. Any other use would require that actor’s consent and bargaining for the use, subject to a minimum payment." 2

For those of you who are not familiar with the inner workings of the film and TV industry, the vast majority of actors in large productions are background extras. And being an extra has long been an entry path to speaking roles - and, optimistically, stardom. Some of Hollywood’s A-List actors that started as extras are: Brad Pitt, Channing Tatum, Renée Zellweger, Clint Eastwood, Sylvester Stallone, Matt Damon, Ben Affleck, Bruce Willis, and Megan Fox. 3

It’s also worth noting that SAG-AFTRA’s typical union rate for background extras is around $200 a day. A DAY. Which makes the alleged studios’ proposal that they pay $200 for unlimited use of a person’s digital likeness – well, to put it nicely, grossly offensive to humanity.

 How much is a person’s digital likeness worth? This is a tough question, and of course it's contextual as we like to say in the world of Data, but it’s one in which I feel governments need to weigh in. I would particularly like the US Congress to propose strong regulations and clear legal guidance regarding a person’s digital likeness. In fact, I would like the way that we consider digital likenesses to be even more strict that than we conventionally think about them because I think it’s necessary to prevent exploit and abuse in an increasingly digital world. And it's easier to start stricter with this type of regulation than try to claw things back from big corporations later.

My Proposal for Regulating a Person’s Digital Likeness

My proposal is fairly simplistic, which is to adopt a set of basic principles that I believe should be enshrined into law.

Principles for the Definition and Treatment of a Person’s Digital Likeness

1. A person’s digital likeness is inherently part of one’s self. Therefore, any constitutional and legal protections for an individual apply equally to that individual’s digital likeness.
2. Just as one cannot legally indenture or enslave a person “...for the rest of eternity…without consent or compensation,” the same is true for their digital likeness.
3. Digital likeness cannot be sold outright, just as an individual cannot be sold. However, after one’s death, a digital likeness should pass to a person’s heirs, to be managed and treated as an individual just as in life.
4. A digital likeness is not alive, so any death-related crimes one can commit on an individual (murder, manslaughter) are not applicable to a digital likeness.

Testing the Proposal with Some Use Cases

• Employment of Digital Likenesses

With these principals, employment laws would apply to digital selves the same as they would to individuals – they could be hired for specific jobs with specific terms and conditions, and since the digital likeness is working “at will,” they have a right to “quit” and terminate the agreement. This could go so far as a show on a streaming service has to stop streaming because the digital likenesses are no longer “working” on it.

• Forced Action of Digital Likenesses

Can a person who is working with another person's digital likeness make the likeness do something to which the individual does not consent? My answer is no – the digital likeness is just a part of the individual.

• Sexual Assault of Digital Likenesses

What would happen if a digital likeness is put in a video and raped, without the consent of the individual whose likeness it is? Should the perpetrator be prosecuted for rape? Personally I say yes because it causes incredible harm and shame on the victim, even if the an equivalent physical damage was not caused. The sentencing phase of a trial could be used to scale the punishment appropriately.

Wrap-Up

 I know that my summary and proposal is not holistically adequate. For one, it doesn’t even define what a digital likeness is. However, I think it is directionally correct; and, as the current debacle in Hollywood demonstrates, the time to act it now.

Reference articles

1 - https://www.wired.com/story/hollywoods-future-belongs-to-people-not-machines/

2 - https://people.com/sag-claims-studios-want-to-scan-background-actors-use-likenesses-for-free-7561285

3 - https://www.backstage.com/magazine/article/famous-actors-started-extras-13040/