The hit Netflix anthology series, “Black Mirror”, is renowned for incisively futuristic narratives filled with ethical quandaries and technological conundrums. Among the topics it broaches most frequently is artificial intelligence (AI), its potential for misuse, and the consequential legal questions that arise. A recent episode, “Joan Is Awful”, presents a compelling case that grapples with these issues.
In the episode, a fictitious global streaming platform named “Streamberry” releases a TV show that chronicles the life of a character named Joan. This program isn’t a traditional dramatisation but an eerie reflection of Joan’s real life, produced using real-time data culled from Joan’s phone. Leveraging Joan’s texts, phone calls, and even ambient conversations, the information is fed into a quantum computer, which, powered by generative AI and computer-generated imagery, fabricates the anthropic show. Particularly, the character “Joan” is visually rendered through a replica likeness of renowned actress Salma Hayek.
The invasive AI technology doesn’t merely imitate Joan’s physical appearance and daily routine but also generates an unfavorably unflattering portrayal of her, causing detrimental real-life repercussions for her. Upon seeking legal consultation, Joan is informed that Streamberry’s actions are technically legal, owing to the platform’s terms and conditions, which allow for acquiring and manipulating users’ personal information and likenesses.
The series then carries forth a narrative where Joan and an AI projection of Hayek plots to defeat the omnipotent quantum AI system, but it isn’t the denouement that garners the attention, rather the chilling legal implications that are introduced through the narrative.
The application of AI technology, as portrayed on “Joan Is Awful”, raises numerous legal points yet to be distinctly clarified. Issues revolving around intellectual property rights incorporating copyright, privacy rights, user protection and likeness rights are among the major legal themes that are echoed through the episode.
For instance, cases such as the appropriation and exploitation of Salma Hayek’s likeness, and to a more profound degree, Joan’s, underline current legal tussles regarding the use of someone’s name and likeness for commercial purposes. On the brink of technological advancement, traditional lawsuits concerning the usage of public figures’ likenesses are expanding to include private individuals’ exploitation.
Moreover, the legal waters regarding AI mimicry and replication are yet uncharted terrains. Recent lawsuits have addressed the copyright violations occurring from unpermitted use and replication of copyrighted elements from datasets for machine learning. Instances of such litigations involve class actions on behalf of book authors led by notable authors Mona Awad, Paul Tremblay, and Sarah Silverman against AI creators OpenAI and Meta, Microsoft, GitHub, and OpenAI are being sued in a class action on account of copyright infringement, among many others.
Significantly, overarching privacy concerns too are spotlighted in the narrative. The manifestation of an AI-fueled reality show that involuntarily laying bare Joan’s personal data exudes the threat of potential violation of privacy legislations, such as attorney-client privilege and HIPAA. In fact, it is against this backdrop that Italy, a member of the European Union, has imposed a temporary ban on ChatGPT, citing its compliance failure with GDPR privacy legislation.
The unregulated state of AI in the United States implies a precarious status quo, with privacy concerns frequently emerging due to nonconsensual data usage for machine learning. It remains to be seen what concrete regulations or laws will be implemented to address these burgeoning concerns and issues consistently, but change appears inevitable. In an evolving legal landscape, one wonders if the warnings presented by shows like “Black Mirror” will influence forthcoming regulatory frameworks.
This analysis derives from the perspectives of Mark A. Baghdassarian, a partner at Kramer Levin specializing in intellectual property, senior attorney Zachary B. Fields, and associate Jonathan Pepin, both of whom are also affiliated with the intellectual property practice at Kramer Levin.
This article is based on the insights shared in a detailed analysis, which can be found here.