In an age where the events of science fiction shows like Black Mirror are becoming increasingly familiar, Hollywood must take inventory of new, technology-enabled dangers. Specifically, the film and television industries have to acknowledge the mounting threat that Deepfakes––the hyper-realistic alteration of digital images––pose to a world dedicated to producing content for the small and silver screens.

Season five of Black Mirror faced wide-spread criticism for its finale entitled “Rachel, Jack and Ashley Too.” The episode followed a trouble pop star, Ashley Ortiz, who tries to get out of her restricting contract. Her requests are met with betrayal, as Ashley’s manager laced her dinner with medication so potent it resulted in the pop icon’s coma. Following this, Ashley’s team found a suitable albeit uncanny solution to the singer’s health crisis. They replaced her with a holograph that could continue a tour in Ashley’s absence. Although the episode disappointed audiences, its premise foreshadowed a very real and fast-approaching possibility: Deepfakes so convincing they stand to replace real, human entertainers. This prospect is now catching the attention of law and policy makers.

When lawmakers passed around 300 bills in a historic June legislative session, they let a bill fall to the wayside without a vote. Had it been passed, the proposed legislation could have made a powerful stand against the unsanctioned use of any “digital replica to create sexually explicit material in an expressive audiovisual work.” This law would have extended protections of someone’s likeness beyond death, and would have even formed a registry that would allow the heirs of celebrities to maintain control over their loved one’s image and name post-mortem.

Concern over deepfakes is on the rise in both Washington D.C. and Hollywood. While policy makers in D.C. have to consider the effects of realistically manipulated digital imagery on fake news outlets, Hollywood entertainers face future issues of discretion and free speech. For instance, the actors guild SAG-AFTRA had previously shown support for the proposed law in New York with the hope that it would protect its members from non-consensual exploitation (namely, exploitation in the form of pornographic deepfakes). Unfortunately, due to push back from the MPAA, broadcasters, publishing companies and some technology-centered advocacy groups who feared the law’s consequences on free speech, the bill did not join the hundreds that were passed during that legislation session. Fortunately, it will likely be re-proposed during the next legislation session, which is scheduled for late 2019. Now more than ever, SAG-AFTRA is emphasizing the need their members have for controlling how their likenesses are used in the creation of digitally-manipulated performances. Meanwhile, the MPAA stands by its concerns for the propositioned law, which could interfere with the future production of documentaries and biopics that aim to tell stories about real people and events.

Concerns over the implications of legal protections against exploitations on the First Amendment are not unique to this issue, however the proposal in New York which aims to reform rights to publicity and privacy in this technologically-advanced society will drag such anxieties into the spotlight.

Case in point, had the proposed New York law been passed it would have established an individual’s name, picture, signature and voice as “property rights.” This broadens many states’ present-day delineations of viable privacy concerns. Moreover, the bill would have established someone’s right of publicity as “freely transferable” via contracting. The deputy general counsel of SAG-AFTRA, Jeffrey Bennett, provided a simple explanation of what this change could mean.  “When you think of publicity rights as a property right, you would be able to license its use,” he said, “With regards to transferability, all we are talking about is licenses.” His explanation draws on a Carrie Fisher’s decision to license her likeness for new Star Wars films following her early death.

Others are far less lax about the proposed transferability of publicity rights. Professor Jennifer Rothman, who teaches law at Loyola, fears the ways in which the bill could backfire. “For example, if a celebrity declared bankruptcy, then her creditors could take ownership of her publicity rights,” she explained. “Similarly, ex-spouses could take an ownership interest in a person’s identity when assets of the marriage are split.”

Professor Rothman continued to detail how even voluntary transfers could have far-reaching consequences. “Allowing the free transferability proposed in this bill will place at risk aspiring actors, musicians and models, who are all particularly vulnerable to signing away their rights of publicity for a chance of getting representation, or a record deal, or doing a photo shoot,” she said. “Unions can step in to help, but not every deal or transaction is governed by union deals. … In addition, these transfers apply to everyone, including ordinary citizens who might discover that online terms of service could transfer ownership of our names and likenesses to Facebook without any ability to reclaim these rights.”

Supporters of the bill have argued that even though California already permits free transferability, most of the described worst-case-scenarios have yet to happen. This point is far from resolving the matter though, as it does not guarantee a future in which lawyers and the ill-intended do not take advantage of new legislation.

For instance, Bing Crosby’s first wife attempted to gain publicity rights of her late-husband following changes to Californian legislation. Despite her argument that she was owed these rights as community property from her marriage to Crosby, a 2014 appeals court made the decision that her claim came too late given that the actor died in 1977. This ruling left the issue of his first-wife and his publicity rights unsettled.

What is more, endeavors at foreclosing on a person’s publicity rights as a means of settling debt have already resulted in complicated discussions. After a jury called upon O.J. Simpson to pay $33.5 million in damages following a wrongful death civil case, the family of Ron Goldman managed to claim ownership of the copyright to the former NFL star’s memoir entitled If I Did It. Goldman’s family likewise attempted to claim Simpson’s right of publicity as a transferable asset, although this request was ultimately denied. Had Goldman’s family successfully appealed for this right, they would have been granted full control over his name and image. Meanwhile, Simpson would no longer have the right to his own name and face. The judge maintained his decision on the gray-area that rests between publicity and privacy, warning of “turn[ing] a man into a commodity and mak[ing] him serve the economic needs and interest of others … against his will.”

The discussion does come close to ending there. Beyond the dramatics of Black Mirror’s “Rachel, Jack and Ashley Too,” there are even more dangers surrounding voluntary licenses of one’s right of publicity, as Bennet readily explained.

“Let’s say [a filmmaker] wanted to do a biographic movie about Heath Ledger, and rather than have an actor play Heath Ledger, they used a digital version,” said the deputy general counsel. “We think that would be perfectly fine. Now contrast that example with a [re-created] Heath Ledger becoming the next Captain Jack Sparrow in a Pirates of the Caribbean movie. That wouldn’t be OK. That would threaten actors’ livelihood.”

Not only do advancing technologies threaten entertainers with exploitation, they also pose a risk to future jobs. Just as Bennett explained, if the heirs of Heath Ledger possessed his right to publicity, they could license his name and image to Disney. This would open up a world in which a deepfake rendition of Ledger could play Captain Jack Sparrow in place of a living, working actor.

Today, Hollywood is home to a limited pool of A-list actors whose busy schedules prevent production companies from star-studding every film. Should real-world technology develop to the match pace of fictitious inventions like Ashley Ortiz’s hologram, deepfakes of major Hollywood actors could take roles away from others trying to make a career in entertainment.

Bennett acknowledged this, but his support for the proposed law is nevertheless unwavering. “Sure, that could be an issue,” Bennett said. “We just want to make sure our performer is the one who gets to say ‘yes’ or ‘no.’ Without a right of publicity, they don’t even have the right to stop it from happening.”