What Are the Legal Implications of Your Avatar?

With the rise of AI apps and web 3 virtual worlds, the average person is catching up with what gamers have been doing for years: Living a parallel life through an avatar. As a result, it’s important to know what legal rights your avatar holds versus your “real life” self.

An avatar is a virtual representation of the user, or of the user's alter ego or character, in the virtual world. The popular app, Lensa, uses uploaded photos of yourself to create an AI-generated set of avatars. The first question to consider is whether you own the copyright to these images. The photographer of the photo used would technically be the copyright holder of the underlying photo. However, once AI takes over it would become a derivative work with you as the new copyright holder.

Copyright Considerations

According to the Lensa terms, you own the “User Content,” but you automatically grant Lensa “a perpetual, irrevocable, non-exclusive, royalty-free, transferable, sub-licensable license to use, reproduce, modify, create derivative works of your User Content." In other words, they can use your avatar however they wish, most likely to further educate their AI technology. Lensa is of course only one of many companies creating AI-generated art. Check the terms of service in using any service.

Name and Likeness Considerations

In addition to the copyright issues, there’s also the name and likeness implications of an avatar. In the “normal” world, every state provides name and likeness rights that carry over to your name, photo, voice, and other “likeness” attributes for commercial purposes. This is an economic protection, meaning other people can’t profit off of your name and likeness. This usually comes up in the context of someone using a celebrity’s photo or voice from which to profit. Courts have held that name and likeness also apply to your avatar. In order to be considered “your” avatar, how closely must it resemble you for such protections? Do you have to create it, approve it, copyright it to have those protections?

Many of these issues have been explored in the context of the gaming world. However, as avatars become more popular with celebrities entering the space, the economic ramifications become more complex. Now, Miley Cyrus’ avatar could perform at a concert in a virtual world while she’s enjoying a relaxing evening at home.

Future Legal Considerations

While the legal world is behind the eight-ball as to the legal implications in virtual worlds, specifically including jurisdiction considerations of this other-worldly space, courts have so far made clear that the economic protections that come with your name and likeness also apply to your avatar. Of course, many future issues are lurking for courts regarding the rights of our avatars. For example, can your avatar be sued for breach of contract in the metaverse? What about criminal implications. Will we need security to protect looters from stealing our NFT Gucci bags or Nike shoes? Or can you blame it on your avatar acting badly?

Will these new worlds simply be a simulated lawless game, or will it parallel the real world with real laws? This question will eventually rest on the constitutional rights of whether an avatar is considered an “individual” (of course, that’s even assuming you’re using US law) or a corporate entity in a corporatized world. These are all questions for another day. And that day is here.