The Mechanical Persona

The virtual reproduction of portraits and voices is sparking debate, partly due to the broadcast of a video generated using machine learning to mimic a deceased person's singing during the year-end Kohaku Uta Gassen. Furthermore, for living individuals, videos cleverly forged for sexual or political purposes are becoming a problem known as "deepfakes." With the spread of information technology, it is becoming increasingly difficult to distinguish between "real" records and "virtual" creations regarding audiovisual information that represents a specific persona.

In Japan, although there are no specific laws to protect portraits and similar attributes, claims for damages based on the infringement of the so-called right of portrait for mental distress and the right of publicity for financial loss have been recognized through the interpretation of the Civil Code. However, the right of publicity, which protects commercial customer-attracting power, is also understood to derive from personality rights, and debate continues as to whether these rights persist after a person's death. Additionally, the scope of protection under the Act on the Protection of Personal Information is limited to information concerning living individuals.

On the other hand, in the United States, the majority view considers the right of publicity to be a property right, and there are many instances where state laws allow for the inheritance of the right of publicity. Nevertheless, as evidenced by the repeated failures to amend New York State law, policy evaluations remain divided. In particular, the duration of the right of publicity after death varies greatly by state, and there is a strong view longing for unification through the enactment of federal law.

When the portraits of the deceased are used beyond the record of a "persona" that once existed, many people express a "sense of unease." What is the true nature of that "unease"? Is it consideration for the bereaved family and related parties? If so, is what is being envisioned the preservation of mental peace or the distribution of financial compensation? Or is the problem the risk of misleading consumers? Or perhaps it is an expression of religious sentiment toward the dead? In any case, the time has come for deeper consideration of this issue as one that also concerns the freedom of expression.