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Deepfakes, Brain Emulation, and Things We Are: Asserting Rights of Origination
(Extended Abstract)
Jeremy A. Hansen
Norwich University
158 Harmon Dr.
Northfield, VT 05663 USA
Introduction
A cornerstone of information security is authentication,
the process by which a person proves their identity.
Authentication is typically described as having three
possible methods (or factors) for a person to supply this
proof: one involving something the person knows (like a
password), another involving something the person has (like
a key), and a third involving something inherent to the
person themselves (like a fingerprint).
By organizing personal rights under three categories
parallel to the methods of proving one’s identity, this work
introduces a theory of rights of origination encompassing
rights like privacy, bodily integrity, and publicity. These
rights are based on a natural person’s attributes that originate
in and are inherent to their physical body or actions and
connected to neither tangible property nor intangible but
otherwise separable artifacts like intellectual property. This
work sketches an outline of personality- and identity-based
rights to identify where current law may not consistently
address threats to human rights in light of technological
changes.
Though the specifics of our discussion here are derived
from US law, there are common rights guaranteed by
multiple supranational organizations that fall under the
umbrella of origination: rights of dignity, privacy, reputation,
and physical integrity (United Nations General Assembly
1948; European Convention 2000).
Right of Publicity
The right of publicity (Rothman 2018) is the established
right in US law best suited to be the foundation for a
proposed right of origination. It safeguards recognizable
aspects of one’s identity from unauthorized commercial use.
With this right, people can assert control over the use of
their inherent personal characteristics in creative works (in
copyright law), the use of their name or personal marks
in trade (in trademark law), or their independent right of
publicity (in laws prohibiting defamation, for example).
Rothman notes that the complexity of and conflicts
between laws relating to identity-based rights create a
tangled identity thicket (Rothman 2022). Because of
competing state and federal jurisdictions in the US, it
is unclear whether publicity is a property right or a
privacy-based personal right. Although it has historically
been considered a personal right, publicity has increasingly
become a transferable intellectual property right that can
be bought and sold (Rothman 2018). When one’s right
of publicity becomes commodified, parts of the person’s
identity can become legally separate from that person,
with the identity-holder and the publicity-holder no longer
being the same entity. When publicity is property, it can
be lost in bankruptcy, sold postmortem to pay off debts,
used as collateral, split in divorce, or cashed out in hard
times. Allowing such transfers “impairs the rights to liberty,
freedom of speech, and freedom of association” (Rothman
2018). Ensuring that such rights are inalienable and rooted
in the individual can prevent many of these negative effects.
Rights of Origination
The right to publicity leaves out several rights that
are based on personality and/or inherent personal
characteristics. We define rights of origination as protecting
all personality-based interests and attributes inherent to
a natural person. Individuals thus maintain control over
the use of the various parts of their inseparable identity
and the right to prevent unauthorized use. Intellectual
property, tangible property, and labor are not included in
this definition because they are either physically separable
from or not inherent to a person’s identity. We assert that,
absent a compelling ethical case, rights of origination
should be universal and inalienable.
Deepfakes & Simulations
Deepfakes or digital replicas are software-generated
simulations of people that use existing images, audio, and/or
video to produce convincing but entirely synthetic content.
Given a corpus of high-resolution video of an actor, for
example, it is possible to construct (without their consent
or physical presence) convincing simulated video scenes
with that actor. Deepfakes lack proper regulation in part due
to First Amendment and jurisdictional concerns, with only
a few US states regulating their use in specific contexts.
These regulations may only be enforceable through existing
bans on obscenity, copyright infringement, or defamation.
Simulations built from the data of multiple people pose an
additional challenge. For example, if a text-based chatbot is
International Association of Computing and Philosophy Conference 2023
a simulated amalgamation of two celebrities, it is not clear
whether either celebrity would be able to assert any rights.
Uploads & Emulations
Where simulations were artificial and approximate versions
of a person based on sources external to the person, brain
emulations are effectively copies of the person—executing
in a computer the actual physical state of a person (the
donor) whose brain has been scanned at an extremely high
level of detail. We do not explore here whether this is
feasible but given the interest in both popular culture and
the literature (Irwin 2019; Eckersley and Sandberg 2013;
Sandberg and Bostrom 2008), it is worthwhile to consider
social and legal impacts of a disruptive technology like this.
The donor being scanned for emulation should have rights
of origination, and third parties involved in the process
should have clear responsibilities to the donor. In particular,
informed consent must be secured before such scans, and
they should be treated like biological samples, clones, or
derived tissue to conform with (for example) the CFR’s
“prohibition on making the human body and its parts as such
a source of financial gain” (European Convention 2000).
The brain scan captures the entirety of the donor’s
identity, leading to profound privacy violations if
unauthorized access occurs. If thoughts, memories,
opinions, or secrets can be extracted, heightened security is
needed. Potential issues with emulations are discussed in
(Eckersley and Sandberg 2013), and the donor should have
the rights to address any such infringement. It is not clear
that any extant laws would apply well in this case.
Conclusion
With rights of origination, every person would have the
ability to restrict the use of the characteristics inherent to
their identity, whether in simulations, emulations, or more
prosaic situations. We hope that this is the beginning of a
discussion, but many open questions remain:
• Are there elements of rights of origination that should be
in the public domain?
• Is there fair use with deepfakes? With emulations?
• Are donors responsible for the behavior of their
emulation?
• Are there socially beneficial and reasonable restrictions
on donors or emulations?
References
Eckersley, P., and Sandberg, A. 2013. Is brain emulation
dangerous? Journal of Artificial General Intelligence 4.
European Convention. 2000. Charter of fundamental rights
of the european union. https://eur- lex.europa.
eu/eli/treaty/char_2012/oj.
Irwin, W. 2019. Black Mirror and philosophy: Dark
reflections. John Wiley & Sons.
Rothman, J. E. 2018. The Right of Publicity: Privacy
Reimagined for a Public World. Harvard University Press.
Rothman, J. E. 2022. Navigating the identity thicket:
Trademark’s lost theory of personality, the right of publicity,
and preemption. Harvard Law Review 135:1271.
Sandberg, A., and Bostrom, N. 2008. Whole brain
emulation–a roadmap. Technical Report 2008-3, Future of
Humanity Institute, Oxford University.
United Nations General Assembly. 1948. Universal
declaration of human rights. http://undocs.org/en/
A/RES/217(III).
