Deepfakes in advertising could change the industry, creating new legal and ethical issues

Deepfakes of celebrities began to be used in advertising. Last week, Elon Musk’s face appeared in a marketing video from real estate investment startup reAlpha Tech Corp, writes The Wall Street Journal.

And last month, in the advertising video of Paperspace Co. the likenesses of actors Tom Cruise and Leonardo DiCaprio appeared.

None of these celebrities spent a single minute in the filming of these campaigns. In the case of Musk, Cruise, and DiCaprio, they never even agreed to endorse the companies in question. All videos of digital simulations were created using deepfake technology, which uses computer visualization. Experts believe that the growing use of fake images could ultimately profoundly change the industry, creating new legal and ethical issues.

Sanctioned fakes can allow marketers to cast stars in commercials without requiring them to actually be on set, reducing costs and opening up new creative opportunities.

Celebrities can certainly fight the distribution of unauthorized digital reproductions of themselves and the manipulation of their brand and reputation, experts say, although unauthorized fakes create a legal gray area.

American lawmakers began to fight the phenomenon of deepfake. In 2019, the state of Virginia banned the use of deepfakes in so-called “revenge porn”, Texas banned it in political campaigns, and California both. Last year, the US National Defense Authoroization Act directed the Department of Homeland Security to prepare annual reports on the threats posed by this technology. But experts noted that they are not aware of any laws that would specifically address the use of “deep fakes” in advertising.

Celebrities have had some success suing advertisers for unauthorized use of their images under so-called right-of-publicity laws, according to Aaron Moss, head of litigation at the law firm Greenberg Glusker. He cited the example of Woody Allen’s $5 million settlement with American Apparel in 2009 for the director’s unauthorized appearance on a billboard promoting a risqué clothing brand.

The ease with which fakes can be created means that some celebrities may soon be inundated with advertisements featuring their unauthorized but very convincing likenesses.

At the same time, the wording in contracts written years before the advent of technology can be vague enough to allow marketers to use existing footage to create new fake videos. For this reason, actors, athletes, and other celebrities will at some point begin inserting clauses into all commercial contracts they sign, prohibiting any new similar use of their likeness.