© 2023 CX LavenderPolicies
4 minute read
I’ve written ads. I’ve directed ads. I’ve acted in ads. I’ve been on TV making goofy faces and people on Facebook went on to use images of me laughing boisterously for an auction site or relaxing in a bubble bath for a chicken franchise as their profile pics.
It was a weird feeling when it was brought to my attention by friends. But I guess I’d once set my profile pic to a photo of George Clooney making an extremely goofy face at a press junket, and there was nothing he could do about it. Should there be? I wasn’t pretending to be George Clooney, just as these people weren’t pretending to be me (unlike the two actual scammers I caught using my name and image in an attempt to steal my identity). So, just how protective should we all be of our digital likenesses?
According to Mark Zuckerberg’s Metaverse launch video, how you choose to appear to other avatars in this upcoming, completely virtual space will be totally up to you. If you want to, you can even appear in the form of a talking hamburger. (Yeah, that was honestly one of Zuck’s big selling points.) Could you choose to look like Zuckerberg himself? Probably not. But the option to create and use almost any virtual representation, whether it’s the face of someone you know or someone you’ve never met, is supposedly there. Pair this with an increased use in facial recognition software, readily available DeepFake technology, and under-acknowledged changes to privacy policies1, and the rights surrounding the ownership of your personal appearance are likely to get murkier.
Film companies are already buying up the rights to famous faces for future commercial benefit. News recently broke that Marvel bought the name and likeness2 of the late Stan Lee, so we can expect him to keep randomly popping up in the Marvel Cinematic Universe for years to come. With the help of DeepFake technology, Lucasfilm’s Kathleen Kennedy recently vowed that iconic Star Wars characters and the role of Indiana Jones will not be recast with younger actors3. So far this has led to the grafting of Mark Hamill’s younger face onto a stand-in, and the recreation of his younger voice using an A.I. vocal synthesiser. Now recognisable actors never need to retire, or even turn up to set.
But how long until our own faces become fair game for companies looking to profit from their use?
“The technology already exists to use your scanned face and insert it into an ad with you as the central figure.”
As mentioned, the technology already exists to use your scanned face and insert it into an ad with you as the central figure, for some truly personalised content. While US marketing commentator Omar Oakes labels the prospect of big companies like YouTube, Google and Android using their technological prowess to put you, your friends or family members’ faces in their ads as a “crude creative suggestion”4, he doesn’t discount the possibility. In fact, he admires its potential: “This is what truly revolutionary technology should be for the ad industry: a little bit scary because of the harm it can cause, but also invigorating because of the opportunities it creates for creativity and marketing effectiveness.”4
Even though the potential that DeepFake technology holds for advertisers is yet to be fully realised, conversations around the ethics of its use are already being had. And heatedly.
It’s clear that likeness rights create a tricky ethical issue for marketers to navigate. Because of the level of verisimilitude, this technology could easily cross the line into uncomfortable or even exploitative territory. In fact, it was hearing Carrie Fisher talk about the issue years ago that first got me interested in the subject. Carrie described signing away her image rights for free as "a mistake", and often publicly lamented the fact: "In those days, there was no such thing as a ‘likeness'... There was no merchandising tied to movies. No one could have known the extent of the franchise… when I looked in the mirror, I didn't think I was signing away anything of value.”5
Now that we know more about where and how digital likenesses can be employed for profit, questions are being raised around whether it’s even legally possible for everyday people, like you and I, to protect our images as ferociously as Disney protects Mickey Mouse. Despite talk around a digital watermarking system4 or similar method of authenticating and protecting facial rights, a legitimate, universal solution is yet to be landed on.
Legal questions aside, it’s clear that advertisers will need to consider how to approach this innovation in the right way – with consent and transparency being paramount to ensuring their consumers, unlike Carrie Fisher, are comfortable with how their likeness is being used.