Fake Virtual 'Influencers' Are Running Into Real Legal Problems
The technology behind virtual influencers is starting to attract interest from venture capitalists, but advertisers may have to think twice about how they go about disclosing the machine behind the celebrity.
January 22, 2020 at 10:00 AM
4 minute read
Your next celebrity sighting may come with a wide variety of legal implications—and pixels—attached. Virtual influencers don't have parents, just digital animators that can make them appear remarkably life-like. Take Lil Miquela, who The New York Times reported had 1.6 million Instagram followers as of June 2019 as well as a devoted fan base on Spotify, some of whom took for granted the erroneous assumption that she was real flesh and blood.
Virtual celebrities are starting to crop up everywhere from advertisements to social media feeds to online customer service queues. And some may even bare an uncanny resemblance to certain movie stars or television personalities.
But while there are certainly some intellectual property (IP) issues raised over how the rights to a digitally created persona are apportioned, the real challenge for the law may lie more with questions surrounding advertising disclosures and what constitutes an infringement of someone's likeness.
"It will be really industry-specific as to whether using a virtual influencer will be worth the effort to make sure that your advertising is compliant," said Margaret Esquenet, a partner at Finnegan.
Problems in that domain may actually intensify as the technology behind virtual characters becomes more sophisticated or life-like. For example, an advertisement for a skin care product featuring a virtual influencer with a flawless complexion could potentially draw the ire of a competitor or even the Federal Trade Commission if the otherwise very human-looking figure isn't accompanied by a disclosure.
The line between what is real and fake has been further blurred by the proliferation of virtual avatars. Andrew Klungness, an attorney with Fenwick & West, noted he's seen a lot of venture capital dollars being invested in technology that can help users create life-like renderings of themselves. However, interested parties may want to think twice before using such a creation to incentivize a sale in California, which passed a law last July requiring bots to identify themselves.
"I could see personally a future where not only do you have "#ad," but "#virtualinfluencer," said Klungness.
Of course, why settle for an unknown when you can use a famous face? Klungness has already worked on deals involving flesh-and-blood celebrities signing over the rights to their virtual likenesses and sees the practice becoming more common as well-known personalities look for new ways to capitalize on their fame.
However, some companies looking to cut corners may elect to circumnavigate the rights-seeking phase altogether, settling for a virtual character that may be best described as Not-Quite-Tom-Hanks. If the real star behind "Forrest Gump" decided to take legal action, he could potentially be in for a bit of an uphill climb.
For starters, Klungness said there's not a ton of case law to fall back upon with regard to right of publicity. One of the more notable instances may be a 1993 case involving a Samsung ad featuring a robot that bore a resemblance to Vanna White of "Wheel of Fortune" fame. White sued under right of publicity, and while Samsung argued that what it had done was a parody, the U.S. Court of Appeals for the Ninth Circuit ultimately determined that there was enough of a resemblance to award damages.
"I could just see that play out over and over again in the virtual area," Klungness said.
But no two celebrities are created the same. For example, one could argue that Kim Kardashian has carved out a very distinct image and likeness for herself, potentially making it easier to prove a right of publicity infringement. Tom Hanks may find it more difficult to lay claim to his "everyman" persona.
Fortunately, nice guys don't always finish last. Thomas Isaacson, a shareholder with Polsinelli, pointed to trademark law, where a legal analysis is often conducted to determine if a mark is likely to be confused with, say, the McDonald's Golden Arches. He thinks that a similar approach could be taken with a Not-Quite-Tom-Hanks bot.
"If you showed this bot to 100 people and said 'who does it look like' and 90 of them said 'that's Tom Hanks,' then that's evidence that its confusingly similar with a celebrity profile," Isaacson said.
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