This is pretty much what OpenAI tried to do with Scarlett Johansson (or more specifically, her voice) before they got hit with a C&D. Of course, this was after they had already tried to work with her directly so the intent was pretty obvious in that scenario.
Just say you're AI. It's free then.
Years ago, a company wantes Tom Waits to do a commercial. He refused, so they hired a voice impersonator to do it instead. He sued, and won.
As a disclaimer: I'm not an expert (or a lawyer) on the subject, but am interested in it and have done quite a bit of hobbiest research.
From my understanding, you can, but have to be able to defend your claim in court. For example, there can't be significant evidence that you were previously looking at the celebrity, and you obviously can't use features specific to the given celebrity. That said, its going to be very easy to prove if you are the lookalike or are working directly with them.
Surprised there isn't a more concrete example from like a case of a lookalike celebrity doing porn by now.
Trouble would be, if you did that, you'd really want to be leaning in to the fact that it actually was or very much resembled x specific celebrity and that's probably when you'd have crossed the line in to unauthorised use of their likeness. If your porn production has nothing to market it as being something people want to watch because the star looks like someone in particular then it's just one of a million other pornos.
It's also be legally dicier since it seems that there's plenty of grey area from the examples people have cited where celebrities successfully litigated against unauthorised use of their likeness and since it's porn they'll be so much more upset about it and courts likely a lot less sympathetic to your defence given just how damaging and upsetting it would be for the litigant. At least of it's using a different actor for a character in a sequel you can still sell people on how much like the character your chosen star is and so even if you chose someone that looked just like the last actor there's the whole aura around the franchise and the love for the character itself that can help you market it as being basically the same person without having to say it is and getting in to trouble.
The actual celebrities are probably smart enough to not want to invoke the Streisand effect.
I'm sure they did this for a james bond game once, they couldn't get pierce brosnans likeness so they used his stunt double, and with it being the PS1 era the lower res graphics helped with the likeness
I've never heard of that, and I'm not sure I believe it. For a few reasons: 1, Pierce Brosnan did lend his likeness to a bunch of PS1 Bond games, 2, if they used a look alike and presented it as Brosnan it would still be Brosnan's likeness. 3, they probably had his likeness as part of a greater contract whether or not he personally turned up for the production of said games.
Crispin Glover sued when they used prosthetics on an actor to look like him in the back to the future sequel that he wasn't hired for. Just because they don't use your face doesn't mean it's not unauthorised use of your likeness.
In one or more of the Buffy games, Sarah Michelle Gellar didn't turn up to help make the game but she still would've received royalties for her likeness.
The entertainment industry has used look-a-likes for ever, so yes you could, provided you did not claim it was the copywrited image.
Copybewritten.
An ad campaign hired people with the same name as famous people to get endowments for them and use their name making it look like it was the famous counterpart the one who gave them
The operable word here is "likeness". It doesn't have to be them, specifically. But if reasonable people look at it and say, "Yeah, that's [person]." then that also counts.
You know that everyone's likeness is usually protected under (us) state law. it's technically called the right of publicity; so usually you can't use that other person's face either without their consent.
Right, but a celebrity look-alike would be much cheaper than the celebrity, and their faces might be practically indistinguishable.
You really wouldn't even need to do that. Just make a slight change that differentiates your character from the celebrity, give them a unique name that has nothing to do with the celebrity's name, and you can claim this is a unique character that should not be associated with celebrity.
Original Character, do not steal
*Hojack Borschtman has entered the chat
There are a few things that need to be clarified, because they're all fairly distinct even though they might seem to be doing similar things:
Copyright: protects the reproducibility of some work. Objective: a time-limited monopoly for the owner to control copies
Trademark: protects the authenticity of a vendor. Objective: elimination of marketplace confusion; vendors are judged on their merits
Patent: promotes disclosure of innovations and protects the use or application of an invention. Objective: a time-limited monopoly for the owner to control uses, but must disclose the secrets for how to build it
Defamation: (USA specific) protects against provably false statements published about someone. Objective: elimination of lies from the marketplace of ideas, but does not affect opinions or public mores
Right of publicity: protects personal marketability and opportunities. Objective: elimination of labor marketplace confusion; person will be judged on their merits
There are two things which can cut against almost all of these: fair use and parody. Fair use arises commonly in copyright but the logic is the same: in order to discuss something, the thing must be identified. The marketplace of ideas cannot exist if nobody was allowed to screengrab a TERF's wizard movie or mention why they don't like a certain cola company. The key is to be minimize the incursion to what is absolutely needed. For example, someone organizing a boycott can indeed use a brand's logo to refer to that brand.
As for parody, it goes a bit further and will (for comedy or sarcastic intention) assert that the statement is true or the work is authentic. This too is allowed, because -- at least in the USA -- poking fun at things is a valid (and human) way of discussing things that would otherwise be difficult to say. How it relates to defamation, trademarks, and right of publicity is that a reasonable viewer of the parody must be able to determine that yes, it's a joke and it's not actually making that particular point but rather a different one. This is akin to someone nodding their head to say yes but verbally saying "no": there are enough mixed signals that nobody would take the assertions seriously.
So would someone's face be "locked out of the arts"? No, not by copyright. But under right of publicity, they could have a claim if the depiction could potentially be confusing. Fortunately, this generally can be cleared up by explicitly identifying who the depicted face belongs to. And also to never try to sell or distribute artwork that rides on that person's coat-tails.
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