If SNL And Forrest Gump Used AI Digital Replicas: Illegal or Free Speech?

Using actors to reenact historical events or to parody recognizable celebrities in films is a long-standing fixture in filmmaking. Think of films like Forrest Gump, Oppenheimer or The Hurt Locker, and parodic comedy sketches on Saturday Night Live or episodes of South Park that make fun of and criticize our culture’s celebrities and political figures.

Legally speaking, a filmmaker has never been required to secure the permission of the real persons being portrayed by the actors in such situations. Such a requirement would invite censorship or exorbitant fees, which would run afoul of the First Amendment. The First Amendment protects the right to speak – and make films about – real persons and real events, so long as defamation and privacy rights are respected.

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Why Not Use AI Instead of an Actor?

As GenAI technology advances, using artificially generated “digital replicas” of actual people in lieu of actors has become increasingly easy, and is increasingly appealing to some filmmakers. Some may say that using digital replicas instead of actors is unethical, or is anti-labor, but is it illegal? In other words, does the fact that you are using a digital replica, or a voice simulation, to portray a person without that person’s permission violate that person’s rights in some way that using an actor to portray them does not?

Assuming there is no collective bargaining or other agreement that prohibits a filmmaker from doing so (SAG productions do have restrictions on using digital replicas of SAG actors), and putting aside instances of sexual “deepfakes” or revenge porn, which are addressed by criminal laws, the answer is, most likely, no, but much depends on the fledgling and emerging body of right of publicity laws that govern this area.

Using an AI digital Replica is Legal

There is no federal law that addresses the use of digital replicas in traditional filmmaking. However, a few states, facing pressure from celebrities or celebrities’ estates, have enacted laws to address it. A few other states have legislation pending. It is nearly certain that digital replica and voice simulation laws will soon be widespread.

Due to the legislative process and lobbying efforts which may differ from state to state, all such laws are different, but all have certain exemptions or conditions to protect free speech. The patchwork is a bit complex. Let’s break it down.

Conditions Apply

To date only New York, Illinois, Tennessee, Louisiana, Montana and California have enacted laws that address the use of digital replicas in audiovisual works, and each has nuances that impact their applicability to certain individuals.

For example, California’s right of publicity law prohibiting the use of a digital replica of a person in an audiovisual work is applicable only to deceased individuals and only for 70 years following their death. In contrast, Tennessee’s law (known as “The ELVIS Act”) is applicable only to living persons during an individual’s lifetime and for a period of ten years following their death. New York and California’s laws are applicable only to “personalities,” meaning a person whose name, likeness or voice has commercial value, while Montana and Tennessee’s laws are applicable to all individuals.

So which law applies? In most cases, the applicable statute will be the law of the state where the individual being replicated resides, if living, or where the individual resided when they died, in the case of deceased persons. In the case of non-US citizens who do or did not reside in the US, these laws likely do not apply to them at all.

Doing the Math

Therefore, when considering using digital replicas in your film that might be affected by one of these state laws, you should ask yourself questions such as: Is the relevant law applicable to living persons, deceased persons, or both? If the to-be-replicated individual is deceased, has the term of protection expired? Is or was the person who you want to replicate a “personality”? Are they or were they residing in the US, and, if so, where? Depending on your subject, they might fall outside the applicable boundaries of the law, or might not be subject to a digital replica prohibition at all.

When The First Amendment Steps In

Importantly, all of the enacted and proposed statutes prohibiting the use of unauthorized digital replicas in expressive works provide exemptions for First Amendment-protected purposes.

For example, the California statute has express exemptions that allow for the unauthorized use of digital replicas in a number of instances, including the following:

• The use is in connection with a news, public affairs, or sports broadcast or account.
• The use is for purposes of comment, criticism, scholarship, satire, or parody.
• The use is a representation of the individual as the individual’s self in a documentary or in a historical or biographical manner, including some degree of fictionalization, unless the use is intended to create, and does create, the false impression that the work is an authentic recording in which the individual participated.
• The use is fleeting or incidental.
• The use is in an advertisement or commercial announcement for such an exempt work.

New York’s law further contains a public deception requirement, and provides that no violation of the personality’s right shall be recognized, “if the person making such use provides a conspicuous disclaimer in the credits of the scripted audiovisual work, and in any related advertisement in which the digital replica appears, stating that the use of the digital replica has not been authorized by the person [replicated by the digital replica].”

Protecting the Rights of Creators To Recreate

These exemptions protect the use of digital replicas in the kind of parodies, historical docudramas, and Forrest Gump-esque films and expressive works that are so important to our principles of free speech.