CIPIL Evening Seminar: 'Post-Mortem Passing Off in Comparative Context'

Speaker: Dr S. Che Ekaratne, School of Law, University of Reading

Biography: Dr S. Che Ekaratne is a Lecturer in Law at the University of Reading and an attorney admitted to practice in New York State. Her research focuses on intellectual property law, entertainment law, and intersections with other private law. Che has published research on topics including copyright, publicity rights, and laws relevant to deepfakes. Her research has been cited in court judgments and has generated interdisciplinary interest. She has advised several entities, including media and a national law commission, on issues such as image rights and post-mortem intellectual property. Che is a graduate of Yale University, Harvard Law School, the University of Bristol, and the University of Canterbury. She also studied law at the University of Oxford as a Yale undergraduate. Before entering academia, Che’s work as an attorney at an American law firm included submissions to the U.S. Supreme Court.

Abstract: With recent advances in artificial intelligence, it is now possible to generate realistic images of deceased people doing acts they never did while alive. Celebrity actors and well-known authors have been recreated after death in deepfakes and digital replicas. Applicable laws can differ: while some jurisdictions recognise rights of publicity or personality, England & Wales does not. In the UK, therefore, the law of passing off has been used to protect against unconsented human images – albeit by those who are alive and sufficiently famous. This seminar examines how passing off could be developed and deployed for post-mortem images. Given the paucity of case law with post-mortem images, this analysis draws on existing cases featuring images of the living and other indicia of the dead, in relation to the three elements of passing off (goodwill, misrepresentation and damage). It identifies and evaluates situational categories of image-associated goodwill after death, using a recent example of a deceased author’s digital replica. In making recommendations as to principles and possibilities, significant limitations of passing off in this context are revealed. The seminar next compares recent U.S. legislation addressing digital replicas – analysing whether the identified limitations of passing off are similarly present. In the wider global context of publicity rights and personality rights, such comparisons could be relevant for all jurisdictions grappling with these timely issues.

Please note: this event is a hybrid event - it will take place in person in the Cambridge Law Faculty. For those who are unable to make it in person, please register to attend via Zoom.