In 2022, Leslie Stahl of 60 Minutes conducted an interview with Aaron Elster, a holocaust survivor. What was unique about this interview, beyond Elster’s harrowing testimony, was the fact that he had died four years earlier in 2018. The Aaron Elster that Stahl was interacting with was a StoryFile, a hyper-realistic, AI powered recording with impressive, though limited, conversational capabilities. StoryFiles are limited to discussing topics that directly relate to the testimony their contributor recorded as well as answering questions that a potential museum goer would ask of them. For example, when Stahl asked “Elster” what the weather was like that day, the StoryFile acknowledged that it was incapable of answering because it was a recording.
The ultimate motives behind StoryFile are noble, to preserve the stories of historical figures and bring a human element to the teaching of history. That said, the technology is not without its ethical and legal dilemmas, especially in the context of Conversa, a new platform StoryFile has recently launched to enable businesses and private users to take advantage of this powerful tool. Conversa is marketed to private users as a high-tech replacement for scrapbooking. For commercial customers, it is hailed as a replacement for company FAQ pages, informational videos, and customer service chatbots that does not require extensive coding knowledge to operate. Both StoryFile and its spin off Conversa share the same central and potentially fatal legal challenge: infringement of an individual’s Right of Publicity (ROP).ROP is a unique IP theory in the American legal tradition in that it comes the closest to European legal notions built off of Hegelian Personality Theory. US protections over one’s ability to claim exclusive usage over their own likeness under ROP is similarly justified by the intimate connection between the individual, their fame, and their innate qualities such as physical appearance or voice. The prima facie case for ROP infringement is: 1) use of a plaintiff’s likeness 2) for the defendant’s gain/advantage 3) in a way that was not consented to, thus, resulting in 4) injury. Though the exact parameters of the contract stricken between StoryFile participants and the company itself is unknown, there is room to surmise potential legal challenges.
No Doubt v. Activision, 192 Cal. App. 4th 1018 (2011) and Hart v. Electronic Arts, 717 F.3d 141 (3d Cir. 2013) each discuss interesting legal arguments that can present issues for StoryFile. Both cases center around the use of celebrity likenesses in video games. The plaintiffs in both matters won on their claims of ROP infringement on similar theories in which their likenesses were insufficiently transformed by the defendants and used in ways they had not consented to. Their arguments turned on the fact that the marketability of both video games necessarily depended on the plaintiff’s likenesses being as untransformed as possible. Consumers of both the Band Hero and NCAA Football games desired to control the avatars of their idols for game play. What is the point of learning to play Just A Girl for a digital audience if you cannot do so looking like Gwen Stefani or leading the Rutgers football team to victory over their rivals without commanding Ryan Hart as the team’s quarterback? In much the same way that the success of these videogames depended on the realistic depictions of the celebrities they featured, so too does StoryFile, ultimately satisfying the first two elements of an ROP infringement claim.
The last two elements, usage without consent and injury, are difficult to discuss in certain terms given that the contents of the contract StoryFile has participants sign is unknown. That said, one could imagine circumstances that could lead to StoryFile museum exhibits or Conversa files being subject to abuse. For Conversa, this could take the form of a company abusing an employee’s AI likeness to endorse their place of employment to consumers after they have departed the company. Imagine an employee quits after learning their pharmaceutical company has been unethically testing on animals or their credit card company has exploitative policies aimed at low-income individuals. This would present a classic case of ROP infringement in that the employer is continuing to use their employee’s likeness to promote their business despite their moral objections. In the case of StoryFile’s educational exploits, it is doubtful that contributors consented to having their likenesses abused by bad-faith museum visitors. During this current age of spiking antisemitism it would not be difficult to imagine someone visiting Elster’s StoryFile and subjecting it to a line of demeaning questions or vandalizing it physically or through hacking. Though Elster is dead, the harm would be manifold to his loved ones who believed that they could visit Elster’s exhibit to cling to his memory and feel as though he was still with them.
StoryFile-Conversa runs a limited sample of their AI where visitors can ask William Shatner questions to see how the platform operates. In writing this article, I interacted with the Shatner StoryFile and asked it an array of political, controversial, and generic questions to see how it would hold up to scrutiny. When I asked why Shatner agreed to be a StoryFile it provided me with a canned answer about the wonders of the internet and technological progress. Most tellingly, when I asked it if it was worried about being exploited or asked inappropriate questions, several times it said things like “that’s a really thoughtful question! I wish I had thought of it, but I didn’t” or “that stumps me! I’m stumped,” or perhaps most ominously “I’m sorry, I am afraid I don’t understand the question.” While Storyfile and Conversa certainly have the potential to be revolutionary educational and customer-relations tools, it would not be unreasonable to be concerned by their implications.
