What does the Actor’s strike have to do with your estate plan?

by | Aug 4, 2023 | Uncategorized | 0 comments

For years, you’ve heard us preach that digital assets need to be included with estate plans.  Now estate plans need to be created because of digital assets.  The paradigm has changed.  No longer is digital property simply another asset class that comes with unique controls such as privacy/fiduciary access laws, terms of service agreements and a high lack of visibility to its existence.

Digital property is quickly approaching, if it’s not already here, a time that drives how plans are written.  The current actor’s strike is a good example of the alarm bell being sound and a vast majority of us, including professional advisors, are ignoring or minimizing them, in some instances, proactively avoiding them.  In a recent CNN interview, a professional “extra” was interviewed, stating clearly “AI can take my job away”.  And he’s right.

How does this happen?  Well, it starts with the innovation of Artificial Intelligence (AI), which we all have heard of by now.  In short and for the purpose of this essay, AI creates images by manipulating and compounding existing data collected over years by millions of users. It then transforms the data based on the requestor or programmers’ needs and demands, generating a video output that achieves their goal.  It’s not long in the future when some simple images and voice recordings of a person (living or dead) can be used to produce animated life-like 3-dimensional images of them. The Shoah Project, funded by Steven Spielberg, is one of the earliest investors and users of 3D holographic avatars. These avatars can take direction, respond to questions, and even move in fluid motion, reflecting an individual’s unique personality traits.  It completely replicates the person from voice, movement, and fashion. For the Shoah Project, the purpose is to have Holocaust survivors retell and answer questions about their experiences. It’s quite amazing when you think about it. This was the early use of the technology. Since then, the AI and avatar evolution has improved the technology greatly, eliminating most, if not all, flaws.  It’s almost impossible to determine if the final product is real or fiction. 

There are several video clips of Donald Trump and Barack Obama making statements that were completely made up. All you have to do is search for them on Google or YouTube.  In the recent film Indiana Jones and the Dial of Destiny, “the ILM team used machine learning tools to scour years of footage of the actor that Lucasfilm had in its archives” to have Harrison Ford’s character appear younger when they needed to flashback to a young Indiana Jones*

Let’s take another situation where AI images are being used. In the 2022 political campaigns, “a super-PAC supporting Republican presidential candidate and Florida governor Ron DeSantis created a video using AI that falsely depicted “a group of fighter jets appear[ing] to fly overhead as DeSantis speaks” to a crowd. Alex Thompson, debunking the fake flyover in Axios, called it “the latest instance of political ads including digitally altered videos to promote or attack candidates, making it difficult for viewers to discern what’s real.”**

How does this apply to the general public? Imagine a deceased person’s image being prominently featured in a pro-choice campaign. But while that person’s was staunchly pro-life when they were alive.” It’s disturbing that the image can be used convincingly in a way that contradicts their personal values.

Ok, so how does this apply to you?  Well, your image can now be used to replace that striking extra.  Who wouldn’t want to be part of a blockbuster movie? Your 15 minutes of fame has arrived.  But what if it wasn’t a blockbuster movie?  What if your image was used in an adult film, a pitch for a fraudulent product or business, or a political or policy campaign (that you would never have supported)?  All things you may not want to be associated with if you were alive.  Here’s the reality…you may not have control of what happens after you die. 

Your trustee or executor could sell the rights to use your image to a casting agency or other service provider without any limitations…. giving that organization the freedom to sell and place your avatar in whatever they desire (probably for a very low fee).  And you had no say. 

Innovation is moving at a fast pace and at a level not easily understood by today’s established estate preparers.  For centuries, the estate planning industry was reactionary to governmental actions such as tax implications and fiduciary obligations. But the technology and AI revolutions are shaking up age-old planning techniques by requiring more forethought.  Your professional advisor needs to include a provision outlining under what circumstances your visual, audio, and other likeness is to be used, whether whole or in part. They’ll need to include the limitations of your estate and its representatives to use your image.

The reality is you will have to direct your advisor to address these and other digital properties.  The concept of digital property is relatively new, and the field is still getting educated to create standards and practices. According to a 2021 Society of Trusts and Estates Profession and Queen Mary University published report, many advisors are providing flawed advice. A significant 65% of them do so knowing that it can result in criminal liability and be ineffective. They simply may not have considered the impact of our online activities and digital ownership or even the immense power owned by content providers. 

It may seem far-fetched, but the current actor’s strike is relevant to your legacy and reputation.  Many of us will say, “I won’t care because I’m dead,” but that too, is short-sighted.  The generations behind us may directly feel the impact of our actions, both positive and negative.  They will be the ones making decisions on behalf of us that we haven’t even thought about. 

The real question is, “Do you want to be famous, infamous, or not known at all”.  You must be the one to make that decision. 

This is just one example of how technology and online activities are impacting the way we live and after we die.  This is just the beginning, and there’s much more to come.

*Wired UK, How Indiana Jones and the Dial of Destiny De-Aged Harrison Ford July 7, 2023
** The Hill, AI gets political: How do we keep fake news out of campaign ads? June 13, 2023

*** This blog is for information purposes and does not support or endorse any political policy, media outlet or named organizations.”