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Are You Ready to Protect Your Digital Avatar?

Artistic, Political, Commercial Avatar...

Avatars Follow One Another But Do Not Resemble Each Other.

Singer FKA Twigs created her own AI-generated avatar to interact with her fans. Aware of the value she has created, she defended artistic property over her AI-generated double before the U.S. Senate on April 30th, to prevent potential illicit reproductions by internet users who might "illegally appropriate her identity and copyrights... and rewrite the narrative of my own existence," as reported by the Daily Telegraph.

In a less glamorous context, Ukraine recently announced the arrival of a new government spokesperson who will be neither a political figure nor an experienced journalist but a digital avatar. This avatar, named VictoriaShi, will handle inquiries and make public statements to journalists during crises and significant events, thereby freeing up time for human diplomats. The texts for the new Ukrainian spokesperson will always be written by humans. QR codes will accompany the videos to verify the authenticity of the broadcasts and the statements made by the avatar. The avatar's appearance was modeled after Ukrainian singer and influencer Rosalie Nombre, who was "filmed and digitized" for this purpose. The name VictoriaShi reflects the victory of Ukraine ("Victoria") and the technology used ("Shi" means AI in Ukrainian).

Artistic, political, and commercial avatars are developing, particularly in the field of influence. For example, the most followed influencer in the world, Lu do Magalu, represents the Brazilian retail group Magalu, which owns 1,477 physical stores. Since 2009, she has amassed 24 million followers across various social networks where she shares her lifestyle and favorites. Her YouTube videos, including unboxings, practical advice, and gaming content, have garnered over 300 million views, though her audience is currently limited to Brazil.


Avatar: Am I Myself or Another?

It is important to note that some avatars will present a human form, either by faithfully cloning an existing human or by creating a purely fictional human with all the physical and psychological characteristics of a living being. Other avatars will be pure fictional characters, akin to video game characters, which may either resemble a well-known individual (e.g., Donald Trump avatars circulating in the digital world) or be purely fictional without replicating human physical traits. Highly effective avatar generation tools, such as Musavir.ai, are now available. The legal protection accorded to these avatars may vary significantly depending on the situation.

The Avatar as a Vector of Responsibility and Source of Value: Legal Protection?

Legal practitioners face numerous questions regarding avatars. Identity issues in civil law arise if avatars participate in person identification like name, domicile, and gender. Issues of impersonation are also relevant, considering recent laws like the SREN, which introduced Article 226-8 to the French Penal Code to penalize pornographic deepfakes. Avatars can lead to both "malicious" and "beneficial" uses. Misuse can be exemplified by the accusation made by American actress Scarlett Johansson in May 2024 against OpenAI and its CEO, Sam Altman, for allegedly copying her voice without consent for the ChatGPT 4.0 system. In response, OpenAI announced on May 20th the suspension of "Sky," a voice tone criticized by Johansson, stating, "Out of respect for Ms. Johansson, we have suspended the use of Sky's voice in our products. We apologize to Ms. Johansson for not communicating better," according to a statement emailed to the AFP by OpenAI. The avatar, as a vector of responsibility, also represents value through the creation it embodies, which we propose to explore here by distinguishing between intellectual property rights and personality rights.

Intellectual Property Protection of Avatars

In France, avatars could be protected by copyright or economic parasitism. Under copyright law, a digital avatar is akin to a fictional character. Thus, its physical appearance, traits, reputation, and values can be protected. However, it is more challenging to protect avatars replicating our own traits due to the lack of creative choices, necessitating recourse to image rights. Economic parasitism and unfair competition should also be considered. An economic operator developing an avatar with consistent, identifiable physical and psychological characteristics has an interest in protecting the economic value of this digital entity. French law could protect this digital creation through parasitism, as the humanized avatar represents an individualized economic value created through investments, meeting the criteria for parasitism protection under French law. Any third party unnecessarily reproducing this avatar would commit a tortious act (Article 1240 of the French Civil Code), requiring them to compensate the avatar's owner for the damage caused.

Personality Rights Protection of Avatars: The Example of Image Rights

In French law, avatars can be protected by intellectual property rights and personality rights, specifically voice and image rights. We will focus on image rights. The digital avatar as a person's digital double raises a critical question: Is this avatar the person themselves or another entity? The jurisprudence on look-alikes is uncertain and would require a judge to rule more definitively on this issue. Can a person claim image rights when the representation is that of a look-alike? Jurisprudence has not admitted this, as seen in the case of a political figure's look-alike on television. The plaintiff "cannot complain about the use of his look-alike's image, which is not his own." More recently, the Paris TGI ruled similarly on February 27, 2013, regarding the use of an actor's look-alike image. Despite a striking resemblance, the image used is not that of the person, limiting the success of an image rights claim. However, using a look-alike is not accidental; it seeks to evoke the actual person, and in such cases, excluding all possibilities of action for the person, especially if they are famous, would be regrettable.

Vincent FAUCHOUX / Jean-Michel BRUGUIERE
Image par Canva
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