By: Carson Hicks
Last year Lucasfilm released the second season of The Mandalorian to Disney+, continuing the story of the eponymous bounty hunter, Din Djarin, and his force-sensitive ward Grogu, known more commonly as Baby Yoda. The season culminates in a finale cameo by the Chosen One himself, Luke Skywalker, saving the heroes from certain death and spiriting Grogu away to train him in the ways of the Jedi. In the Star Wars universe, The Mandalorian takes place just five years after Return of The Jedi, reflected by the unchanged appearance of Luke despite the forty real-world years that have passed. This was made possible by the technology behind deepfakes and digital doubles, visual effects which are quickly becoming staples of the movie-making industry and bringing potentially serious consequences.
Deepfakes are created using hundreds of photos or videos of a subject, say an actor, to create simulations of that subject doing something they’ve never done before. Simulations can recreate the actor entirely, or be used to simulate one actors likeness on the body of another. This technology first received wide public attention in 2017 when it was used to simulate the faces of celebrities onto pornographic actors, but as the technology has become more effective and accessible, its application has shifted to less scandalous projects. At present, a convincing deepfake can be manufactured using only three hundred images of a particular subject. Although not quite out of the “uncanny valley” as of yet, deepfakes have already become a favorite tool of studios known for their stunning visual effects, like Disney. For example, Disney has been able to resurrect and de-age deceased actors, like Peter Cushing and Carrie Fisher, to reprise their Star Wars projects using a combination of deepfake and digital double technology.
This development in visual effects is promising for many fans, but may have a more sinister tone for actors and celebrities. Concerns about deepfakes have historically been focused on the potential spread of misinformation through impersonation of political figures, or the use of one’s likeness in risqué videos. Responding to attention brought by pornographic deepfakes, the Screen Actor’s Guild (“SAG”) lobbied to pass a law in New York that would have established property rights in traditional publicity rights, such as name and likeness, that an individual would be then able to license out for use. This bill was ultimately tabled due to First Amendment arguments by the Motion Picture Association of America (“MPAA”), amongst other broadcasting and publishing groups, citing a potential chilling effect on free speech. Other opponents to the bill argued that making publicity rights freely transferable by contract could do more harm than good for the acting community.
Despite these objections, the recent paradigm shift in visual effects highlights the need for the law around publicity rights to catch up with the progress of deepfake technology. For example, actors that sign onto a project within a major intellectual property like Marvel or Star Wars undergo full body scans, digitizing their likeness for future reference. These scans can be used to map an actors’ features onto a body double, to recreate the character digitally, and (with the right input) can even be used to reconstruct an actor’s voice, all without the actor being present. Because deepfakes do not fit neatly into the traditional causes of action associated with publicity rights, critics warn that the company that owns the intellectual property can then use the actor’s likeness without their approval. In other words, once an actor signs on to a project within a large and profitable franchise like Star Wars or Marvel, their likeness and voice could become part of the intellectual property due to its affiliation with the character. This could potentially give the studio that owns the intellectual property has the right to use the character, and thereby the likeness of the actor, however they see fit.
Additionally, there are concerns that the shift to digital casts will result in the loss of jobs and could lead to industry-freezing labor disagreements like the SAG strike of 2000. While actors in states that already treat publicity rights like property rights have seen modest success in recovering for use of their likeness for individual projects, experts argue laws concerning deepfakes need to be expanded as the efficacy of the technology advances. California, Virginia, and Texas have already passed deepfake laws that impose criminal penalties for nonconsensual use of the technology, but these laws target pornography and political misinformation rather than entertainment. These laws need to be expanded to protect actors, potentially drawing inspiration from copyright law, as the use of deepfakes and other digital reconstruction across entertainment mediums continues to grow.
 See The Mandalorian, supra note 1; see also Star Wars: Episode VI Return of The Jedi, Wookiepedia, https://starwars.fandom.com/wiki/Star_Wars:_Episode_VI_Return_of_the_Jedi; see also Galactic Standard Calendar, Wookiepedia, https://starwars.fandom.com/wiki/Galactic_standard_calendar (using the Battle of Yavin 4 in Episode IV A New Hope as a fixed point around which chronology can be established via an in-universe timeline; Episode VI occurs four years after the battle of Yavin (“ABY”) with The Mandalorian season two set five years later in 9 ABY).
 See James Troughton, We Shouldn’t Be Celebrating Deepfake Luke Skywalker, TheGamer.com (Feb. 7, 2022), https://www.thegamer.com/the-book-of-boba-fett-luke-skywalker-deepfake/.
 See Dave Johnson, What is a Deepfake? Everything You Need To Know About The AI-Powered Fake Media, Business Insider (Jan. 22, 2021, 11:46 AM), https://www.businessinsider.com/what-is-deepfake; see also Jacek Naruniec, et al., High Resolution Neutral Face Swapping for Visual Effects, Disney Research Studios (2020).
 Naruniec, supra note 5.
 Betül Çolak, Legal Issues of Deepfakes, Institute for Internet & the Just Soc’y (Jan. 19, 2021), https://www.internetjustsociety.org/legal-issues-of-deepfakes.
 See id.
 See Rachel England, Disney’s face-swap technology is as impressive as it is unsettling, engadget (June 30, 2020), https://www.engadget.com/disneys-faceswap-technology-is-as-impressive-as-it-is-unsettling-123524432.html.
 See Sharon Knolle, Lucasfilm Digitally Scans All Its Actors’ Faces ‘For Reference Later’, MovieFone.com (Apr. 9, 2018), https://www.moviefone.com/2018/04/09/lucasfilm-digitally-scans-all-its-actors-faces-for-reference-l/.
 See Eriq Gardner, Deepfakes Pose Increasing Legal and Ethical Issues for Hollywood, The Hollywood Rep. (July 12, 2019, 6:00 AM), https://www.hollywoodreporter.com/business/business-news/deepfakes-pose-increasing-legal-ethical-issues-hollywood-1222978/.
 See Çolak, supra note 7; see also Jack Langa, Deepfakes, Real Consequences: Crafting Legislation to Combat threats Posed by Deepfakes, 101 B.U.L. Rev. 761 (2020); Erik Gerstner, Face/Off: “Deepfake” Face Swaps and Privacy Laws, Defense Counsel Journal (2020).
 See Gardner, supra note 11 (including voice and signature in the new class of property rights, with the deputy general counsel of SAG drawing comparisons to Carrie Fisher licensing her likeness for Star Wars projects); see also Erik Gerstner, Face/Off: “Deepfake” Face Swaps and Privacy Laws, Defense Counsel Journal at *8 (Jan. 2020).
 See Gardner, supra note 11.
 Id. (explaining, as an example, that if the bill were to pass and an actor were to file for bankruptcy, creditors would have an opening to take ownership of publicity rights).
 See Gerstner, supra note 13; see also Gardner, supra note 10.
 Knolle, supra note 10 (including a stipulation by a Lucasfilm VFX supervisor claiming the body scans are done only for reference and not as an intentional archiving process back in 2018).
 See Troughton, supra note 4; see also Bryan Bishop, That massive airport fight in Captain America: Civil War was almost entirely digital…and you didn’t even know it, The Verge (May 12, 2016, 1:08 PM), https://www.theverge.com/2016/5/12/11664554/captain-america-civil-war-cgi-visual-effects-spider-man-interview (describing the process by which Marvel, owned by Disney, used digital doubles based off body scans to create an entire action sequence without some actors present); Film Theory, Film Theory: Disney OWNS Your Face! (Disney Deepfake), YouTube (Feb. 26, 2022), https://www.youtube.com/watch?v=1spfXFWIxn0 (using clips where showrunner Jon Favreau explains how the VFX team used machine learning to completely reconstruct Mark Hamill’s voice for young Luke).
 See Film Theory, supra note 18 (pointing to interviews with Mark Hamill about his experience consulting on the set of The Mandalorian where he implies that his invitation to the set was purely ceremonial after the VFX team used none of the takes he provided); see also Gerstner, supra note 12 (explaining how publicity rights have traditionally been used to justify claims of defamation, false light and IIED).
 See Film Theory, supra note 18; see also Gardner, supra note 11.
 See Film Theory, supra note 18; see also Gardner, supra note 11.
 See generally Gardner, supra note 11; see also Reuters, U.S. actors union ends longest-ever strike, CNN (Oct. 23, 2000, 11:01 pm), http://www.cnn.com/2000/SHOWBIZ/TV/10/23/actors.strike.02.reut/index.html.
 See Gardner, supra note 10 (pointing to actor Bela Lugosi’s estate successfully recovering merchandising rights for his appearance in Dracula as a promising sign); see also Gerstner, supra note 11 at *14.
 Çolak, supra note 7; see Va. Code Ann. §18.2-386.2; see also Tex. SB 751; see also Calif. AB-602, AB-730.
 See Gerstner, supra note 11 at *10; see also Zack Sharf, Lucasfilm Hired the Youtuber Who Used Deepfakes to Tweak Luke Skywalker ‘Mandolorian’ VFX, IndieWire.com (July 26, 2021, 6:00 PM), https://www.indiewire.com/2021/07/lucasfilm-hires-deepfake-youtuber-mandalorian-skywalker-vfx-1234653720/; see also Jon Freeman, Dolly Parton Is Recording Music to Release After Her Death, Rolling Stone (Jan. 9, 2020, 4:50 PM), https://www.rollingstone.com/music/music-country/dolly-parton-recording-music-after-death-935786/