Have you seen a celebrity advertising something, like the Barefoot Investor advertising bitcoin, that you really didn’t expect them to have anything to do with? Or you might have seen Eminem doing a Motown cover of “Without Me” that looks and sounds real.

What they have in common is that AI tools have been used to create the avatars of those people using publicly available (and subject to copyright) content to closely mimic their look, sound and movements, raising concerns around intellectual property protection and copyright law.

The use of AI tools to create digital avatars of real people is a rapidly evolving technique for marketing and content delivery. However, while digital avatars can be efficient time and money savers, many people haven’t stopped to consider how much control they have over their own avatars, who is generating them, who is using them and what they are communicating.

Maintaining control over your digital avatar is vital to protecting your brand, reputation and business… 

1. What is a digital avatar?

A digital avatar is an AI-generated persona that mimics human appearance, voice, and/or behaviour. Essentially, it is a digital persona of you that looks, talks and acts like you on digital media, forming part of your broader digital identity.
  

Depending on the design, digital avatars range from being able to speak a pre-determined script like you would, to being able to make decisions like you, based on your previous pattern of decisions. While the latter is only recently emerging, this technology is rapidly evolving, and it is important to be prepared to avoid future problems and legal risks for businesses.

Digital avatars are commonly used in customer service, sales, marketing and education. They can be entirely synthetic and not based on a real human being at all. It is possible to use generative AI to produce a human looking character based upon a set of defined parameters.

For now, we are focused on discussing the protection of digital avatars whose design is based on real humans – namely you or someone in your business.

2. Why do you need to retain control of your digital avatar? (What could possibly go wrong?)

To protect both yourself and others it is vital to maintain legal control of your digital avatar and ensure proper legal agreements are in place.

Digital avatars look like you.

What your digital twin says to your audience communicates what you represent and impacts your brand reputation.

Where another person or organization has control of your avatar, they can prompt it to say things that are against your values, or are misleading, false or defamatory, which could leave you in ‘hot water’ and expose you to legal liability risks.

Consider the proliferation of fake news anchors, some mimicking real reporters, talking about fake events, increasing the level of confusion around what is and isn’t real.

3. Can your Avatar make decisions for you?

Another issue that can arise is the matter of who is legally responsible for the content created or decisions made by a digital avatar.

If a digital avatar has been created to make decisions on your behalf, however limited the scope, who is responsible for the decisions that the Avatar makes?

For Example:

• What happens if your digital avatar activates a financial investment that you wouldn’t have made? Can you back out?
• If your digital avatar has created content autonomously, who owns the intellectual property rights to that work and how does copyright protection apply?

While these examples may sound far-fetched and largely irrelevant for now, the reality is that this is where this technology is headed.

If you do not retain control over your avatar, you have no ability to ensure that what it says, creates or personifies aligns with what you believe and represent.

4. What can you do to retain control of your digital likeness?

You could simply not create a digital copy, but then what do you do if someone else creates one of you? 

Firstly, in Australia a photo or video of you can be considered ‘personal information’ and protected under Privacy Law.

Copyright law will provide some protection if you can demonstrate a sufficient level of human intervention in the creation of your digital twin and assert your intellectual property ownership.

Consider how your digital avatar will be used. In a business context, your digital copy could deliver:

• Marketing and promotion
• Education
• Product demonstrations
• Training and induction

If you are going to allow employees, contractors or your business to use your digital avatar, a clear intellectual property agreement is important. The agreement should cover how your digital counterpart can and cannot be used and that you retain all rights to it.

Get into a habit of routinely reviewing the legals of the platform you are using to create and manage your digital avatar to ensure you are retaining control and maintaining legal compliance.

5. Where is the tech going? Is regulation keeping up?

It is usual for laws to be enacted many years after new technology is developed and only adapted to respond to emerging problems after they have arisen rather than in anticipation.

Currently, Australia has no laws specifically governing digital avatars. In China and the United States, legislation has begun to be introduced to reactively manage the power of AI and problems it creates.

However, in Denmark, they have taken a proactive approach and introduced laws to give people copyright to their own body, face and voice. Unfortunately, this is a rare demonstration of proactive protection of rights in the face of digital innovation. As legislation, particularly in Australia, is more likely to be reactive rather than proactive, you need to be proactive in protecting your digital likeness.

A combination of protection of personal information and copyright of a person’s digital likeness appears to be where future legislation might land.

Final thoughts

Despite being part of gen z, and a so-called digital native, I am worried about the capabilities and implications of digital avatars and personally would never create one of myself.

However, I can appreciate that this technology has provided a new avenue of efficiency for sole traders and small businesses, and it is important that we know how to protect ourselves and build strong legal foundations for businesses.

To retain control, you must be the person who creates the digital avatar so that you can claim copyright over it. Then, a strong intellectual property agreement with those who will have access to your digital avatar, allows you to protect your digital likeness from misuse.

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