My question would if there would be a diff btwn public person (aka famous, known) and run of the mill hoi polloi. Famous personalities in some circumstances have less recourse in terms of privacy.
Should the (many!) Elvis impersonators need a licence from his estate?
Impersonating others isn't a new issue, we already have a quite settled body of law about that and centuries of weird edge cases. I don't see a radical difference brought in by technology here. IMHO the treatment of making face-swapped porn videos (or distributing them, which is a quite different case) should be the same as the currently established treatment of painting (or distributing) a realistic painting of someone you know in a pornographic pose - whatever that treatment is.
Actually, the way the law currently works...they might (to avoid one or more tort cases for invasion of privacy, defamation, and/or publicity rights). Studios will rename characters in biopics if they can't secure rights to the person the character was based on. Like all things in the law, it is a matter of context. A biopic or other media "based on a true story" may require the permission of the people portrayed in it. A satire generally would not...The law is complicated like that.
Should the (many!) Elvis impersonators need a license from his estate?
Elvis is dead...The publicity rights of the dead are generally minimal and the invasion of privacy rights nonexistent...Also, the Elvis estate is generally okay with impersonators because for the most part they don't harm (i.e., defame) his image. They have gone after impersonators who they believed misappropriated Elvis' image for defamatory purposes.
IMHO the treatment of making face-swapped porn videos (or distributing them, which is a quite different case) should be the same as the currently established treatment of painting (or distributing) a realistic painting of someone you know in a pornographic pose - whatever that treatment is.
Under the current law, that is several torts: Invasion of privacy, publicity rights, and defamation...
What circumstances would require a film production to ask permission of a real person before an actor could portray him? E.g. The film "The Social Network" didn't ask Mark Z for permission to portray him in an unflattering way:
https://movies.stackexchange.com/questions/2108/how-can-a-st...
Invasion of privacy did not apply because he was a public figure and held to the higher standard for IOP claims. Pretty much everything in the movie has already been revealed before, so there isn't anything private that was revealed in the movie itself.
Mark Z could have had a case for publicity rights. The only problem is...what damages did he suffer? It's likely that his legal team realized that they could only ever win a relative pittance in damages but not block the distribution of the movie, and suing would just trigger the Streisand effect, so they just did nothing. (His damages would likely have been based on the amounts paid to other celebrities for their life stories...usually in the range of $250k to $5 million, a pittance for a billionaire.)
Right of publicity / personality rights are actually a fairly actively evolving area of law (and one with considerable variation between jurisdictions, even with the US), not an area of settled consensus.
I would certainly bloody hope they need permission. You have the usual caveats regarding the public interest for things, but I mean, one could argue a director should at least have one face to face conversation with someone they're including in a movie.
> Should the (many!) Elvis impersonators need a licence from his estate?
I think it's super creepy how widespread and how effectively public domain Elvis' image, act, and etc. is. He's been impersonated, lampooned, parodied, etc. so many times over. I mean you can't deny his cultural impact, but I don't know. I find it unsettling.
> Impersonating others isn't a new issue, we already have a quite settled body of law about that and centuries of weird edge cases. I don't see a radical difference brought in by technology here. IMHO the treatment of making face-swapped porn videos (or distributing them, which is a quite different case) should be the same as the currently established treatment of painting (or distributing) a realistic painting of someone you know in a pornographic pose - whatever that treatment is.
More to the point: I'm not talking about impersonation, I'm talking about the use of one's likeness for personal, commercial, or illicit purpose without that individual's knowledge or consent, and frankly I find HN's overall response to this a little alarming. It seems (though this admittedly small and totally not even remotely scientific sample) that the tech-inclined don't seem to care much for privacy rights when it stops them from doing objectively cool things.
In any case, this is more narrow in that its focus is on pornographic representations of regular people (a la revenge porn).
The reason social networks and other apps can get away with it is because you agree to let them use images of you posted to the network for commercial purposes as part of the Terms of Service you agree to when you use the service. In the absence of that provision in a ToS, you would have a very valid claim for appropriation of image if a social network used a picture of you.
These TOSs do not extend to other pictures of you. Thus, for example, Facebook couldn't run a commercial with a picture of you that was posted to Twitter but not Facebook.
While the details may need tweaked, many jurisdictions already have “something akin to copyright to cover our own faces and identity in general”, under the name “personality rights” or “right of publicity”.
More often, “in our increasingly non-local economic systems”, laws (especially civil laws, where the complaining party chooses whether and where to pursue violations) that vary by area are effectively enforced at the level of the most favorable (to the complaining party) regime available, rather than being unenforced.