Recently, a client invited us to a film set where we joined the cast of extras for a few hours. Whilst this was a once-in-a-lifetime experience for us, for some, this is their livelihood. And yet, such livelihood may be under threat.

Whilst new AI and body scanning technologies technologies offer innovative filmmaking possibilities and cost savings, they also pose a threat to traditional actors. AI and body scanning can create digital avatars of actors, potentially replacing them in productions. Recently, Apple filled a stadium with what looked like 26,000 people using digital doubles of just 20 background actors to create ‘Apple TV’s Ted Lasso’: Ted Lasso’.

Extras are typically paid a day’s wages (i.e. a flat fee, such as a union rate) to record their movements and facial expressions, as reported by NPR. If digital avatars are used frequently and generate significant income over time, the question arises as to whether ongoing royalties should be paid, above and beyond the day’s wages.

In exchange for the day’s wages, extras grant consent for the digital avatar created from their scanned body movements to be used in a specific project. The use of digital avatars in sequels, prequels or spin-offs introduces complexities. Fresh consent should be obtained for additional projects and any adaptations or transformations of the avatar – such as to create an older or younger version – may require separate authorisation, and additional royalties.

The sensitive biometric data collected during body scanning must be treated in compliance with privacy regulations. Disclosure of this sensitive information, or use of an identifiable digital avatar without permission could result in defamation of the extra or a misrepresentation that the extra had agreed for his/her name and likeness to be used to promote or endorse a particular product/service/opinion etc, when they extra had given no such consent.

Ensuring that actors have control over the representation and use of their digital avatars is a primary concern. Whilst Australia does not yet have a specific intellectual property ‘right’ directed at protecting one’s image and likeness, the increase in use of digital avatars in the film and television industry and the associated risk of deep fakes, means recognising image and likeness rights as a discrete and protectible intellectual property right is becoming increasingly necessary.

Until such laws evolve, contracts between actors, extras, studios, and unions must include specific clauses addressing these intellectual property issues. These contracts should clearly define rights, responsibilities, compensation structures, and dispute resolution mechanisms. Having clear contracts in place, at least gives extras a sense of control over their digital avatars for now, as they can rely on contractual remedies for any misuse.

It is clear that extras need to be informed of their rights and the implications of their involvement with AI and body scanning technology, and protected by contractual arrangements. Andrew Susskind, associate professor at Drexel University, suggests that actors and industry professionals should establish guidelines for the use of AI to protect their interests. “The people in the background, who tend to have no real power and are treated badly, should be advocating for themselves here,” he says[1].

In summary, the use of AI, body scanning technology and digital avatars in the entertainment industry raises a host of intellectual property challenges. Addressing these concerns requires careful legal navigation, well-defined contractual agreements, and a keen understanding of the evolving intellectual property landscape in the digital age. At Tarr Law, we understand that protecting the rights and interests of actors, extras, studios and other stakeholders is essential to ensuring fair compensation and creative freedom while maintaining intellectual property rights in the dynamic world of entertainment.

By Luis Gonzalez, Law Clerk at Tarr Law

[1] “Movie extras worry they’ll be replaced by AI. Hollywood is already doing body scans”, Bobby Allyn for NPR, August 2 2023.