Digital Replicas, Performers’ Livelihoods, and Sex Scenes: Likeness Rights for the 21st Century

Abstract

I would like to thank June Besek and Columbia Law School for the opportunity to participate on this panel to discuss the appropriate breadth, waivability, and term of the right of publicity. New technologies and the fact that the New York bill will not go retroactive to protect already deceased performers has made this a more pressing issue that needs legal solutions, not just one. What should the right of publicity protect? The right of publicity is a property right that should protect rights to company branding, advertisements, merchandise, products, and professional performance. The right of privacy should protect against very real emotional harm caused by abusing a likeness; non-consensual sex scenes are certainly on my mind right now. The Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA) is a labor union, which means our primary mission is to ensure economic justice and fair and safe working conditions for our members. This union has pioneered protections for groups of artists and journalists once thought impossible. We fight for good union contracts, marketplace rights, child protections, general safety, and laws and regulations to prevent or stop unethical industry practices. It should come as no surprise that the union is experiencing attacks on union contracts, organizing, basic consent on the internet, and intellectual properties generally. Unfortunately, as a result, this union has to sometimes question the bounds of the First Amendment in this digital era. SAG-AFTRA represents a broad swath of creators. We represent film actors, program hosts, recording artists, singers, voiceover artists, online influencers, and other media professionals. This union also belongs to an image rights coalition made up of other unions and organizations representing entertainers. I have the honor of representing 160,000 entertainers and journalists who also happen to be public figures. These are public figures who want to protect their families and possess a degree of control over how their likeness is used in the marketplace. No SAG-AFTRA member is the same; we represent 160,000 unique individuals with different business objectives, views, and priorities when it comes to likeness rights. That being said, not one single performer we have spoken to wants their likeness to enter the public domain upon death. The right of publicity and rights to digital replicas have long been a priority for the union. SAG-AFTRA members desire autonomy over their legacy and career. If there is a value to a likeness after death, their family, close friends, or a designated charity should receive the fruits of their labors. It is also worth noting that some of our members want to be excluded from commercial exploitation altogether. For example, news broadcasters are concerned their reputations as journalists would be significantly harmed if ever associated with a company or put on a T-shirt or on a doll. SAG-AFTRA members work hard to achieve any amount of marketplace value in the entertainment industry. Our members often self-subsidize much of their training and arts experience to be the talented individuals you see at concerts, on Broadway stages, and in the movies. Image and voice rights are essential components of a functional modern marketplace that returns value to labor. Value is not simply measured by celebrity gossip magazines or a large online following. Value may be a certain look, a certain voice, or one extraordinary performance or song that sticks with us. There is undeniable value to images and voices and so the question becomes, who should benefit from this value? A family or a corporation? Or, if there is consent, how about both? That seems like a win-win.