Digital avatars are becoming increasingly pervasive in our everyday lives. Leveraged for artistic, political, and commercial purposes, these virtual entities embody distinct personalities, engage with audiences, and blur the boundaries between the real and virtual realms.
For instance, many artists are integrating avatars into their performances. Jean-Michel Jarre, for example, recently drew public attention by utilizing an avatar that resembled a video game character during his live mixing sessions. In politics, avatars are also gaining prominence: some have even run for municipal elections, such as in the small town of Cheyenne, Wyoming, USA, while others, like VictoriaShi, a Ukrainian avatar, serve as spokespeople, facilitating communication with journalists.
In the commercial domain, avatars have become powerful marketing tools. The avatar Lu do Magalu, developed by the Brazilian company Magazine Luiza, has emerged as an iconic figure in the digital landscape, with nearly 24 million followers. These avatars are now central to branding efforts, playing an essential role in the communication strategies and digital identity of companies.
Some avatars are digital clones of real humans, while others remain entirely fictional, inspired by the universe of video games. The fluidity between the real and the virtual is made possible by advanced technologies such as Musavir.ai, which allows for the creation of highly realistic avatars. However, one key question remains: can these avatars be protected under intellectual property law?
I – Possible protection of avatars by intellectual property law
Digital avatars can be protected by various mechanisms under intellectual property law, thus securing their economic and symbolic value.
Protection by copyright
Copyright law allows for the protection of artistic creations, provided that they are original and reflect the author’s personal touch. An avatar with a particularly distinctive and creative appearance could be eligible for copyright protection. However, an “ultra-realistic” avatar that merely replicates a physical person may face challenges in achieving such protection. The avatar could be considered a simple reproduction without significant creative effort, which may limit its qualification as an original work.
Protection by design rights
Avatars may also be protected by design rights, which focus on the visual appearance of a product, whether in 2D or 3D. For example, a digital avatar used as a website icon could qualify for design protection. This provides an effective way to protect avatars when they are used in a distinctive manner and exhibit unique visual aesthetics, helping to safeguard their market value.
Protection by trademark law
Trademark law can also be applied to protect certain avatars. A trademark serves as a distinctive sign to differentiate products or services in the marketplace, and an avatar can represent the identity of a company or act as an iconic symbol of its products or services. An avatar can be registered as a trademark if it is used distinctively to promote the company’s products or services, akin to iconic characters associated with certain brands. Although the Nanterre Court ruled in 2015 that the avatar “Cécile de Rostand” from Vente-Privée.com did not qualify as a sign identifying the company’s services, this does not preclude other avatars from fulfilling this role, especially if explicitly designed for such purposes.
Protection by economic parasitism and unfair competition
Economic parasitism and unfair competition should also be considered. For an economic operator who develops an avatar, there is an inherent interest in protecting the economic value associated with this new digital creation.
French law could protect this type of digital achievement through economic parasitism, as it may be argued that a humanized avatar embodies an individualized economic value established through investments, thus meeting the criteria for parasitism protection under French law. Consequently, any third party that reproduces this avatar without justification would commit a tort, incurring liability and obliging them to compensate the owner for the damage caused.
II – Protection of avatars by personality rights
A fundamental question to consider is the nature of the avatar: is it an extension of a physical person or an independent entity? Jurisprudence is beginning to evolve in this area. The unauthorized reproduction of Scarlett Johansson’s voice, used without her consent, demonstrated that a person’s voice could be protected under personality rights, as evidenced by OpenAI’s decision to remove the unauthorized use. Similarly, an ultra-realistic avatar could be protected under personality rights, reflecting the person it represents. For fictional avatars, the situation is more ambiguous, and the lack of established jurisprudence makes any definitive conclusion uncertain.
Thus, several avenues exist for the protection of avatars, whether through industrial property rights, personality rights, or economic parasitism. Although jurisprudence remains limited, mechanisms such as copyright, design rights, trademarks, and the fight against unfair competition offer tangible options for protecting the digital identity of an avatar.
Dreyfus, with its expertise in intellectual property law, is here to assist you in identifying and implementing the most suitable protection for your avatars in this evolving virtual era. We are partnered with a global network of intellectual property lawyers, ready to support you.
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