Image rights and representations in the metaverse

Immersive virtual spaces allow users to interact, co-exist and perform various activities through avatars that represent them – but what are the legal implications of this form of image representation?

Avatars in the metaverse 

Current technology already allows users to create and customize avatars in immersive environments that are extremely faithful to the physical characteristics of people in the real world.

Besides the many faces, haircut designs, colors, eye shapes, accessories and other characteristics, we can expect variations in voice tone, mannerisms, and behavior in the near future, which will only make these representations more realistic.

Notwithstanding the difficulty of generalizing the types of interactions that can take place in the metaverse, this memorandum will focus on avatars portraying real individuals, which may be created by the same individual that is represented or by a third party seeking to represent (or impersonate) another individual.

Image rights 

Image rights fall within the scope of personality rights, which are intrinsically related to the human condition. Therefore, there are a series of prerogatives that ensure these rights can properly co-exist with the principles of freedom and equality in a democratic society, without distinction.

The importance of image rights is indisputable. Consequently, the unauthorized use of these rights, whether for commercial purposes or otherwise, is commonly subject to a more severe treatment in Brazil’s legal system.

Image rights are also guaranteed in Brazil’s 1988 Federal Constitution, which defines people’s honor and image as inviolable rights. Thus, anyone who infringes on these rights is liable for material and/or moral damages.

The concept of image rights also extends to people’s voices and other significant characteristics that may identify or be associated with a particular person – for instance, the former Olympic sprinter Usain Bolt has submitted an application to register his ‘lightning bolt’ victory pose as a trademark in the United States. Accordingly, the use of an individual’s image in the process of developing and exploiting avatars in the metaverse is a sensitive issue that requires proper attention.

Image rights and avatars: legal challenges 

A number of important virtual environments that enable users to interact via avatars have been created over the last few years. This kind of interaction is expected to become even more common and easier to replicate in the future, increasing the importance of image rights in the metaverse.

Although interacting via avatars in virtual worlds is hardly new, improvements to virtual interaction and technology have allowed for the creation of ever-more-realistic avatars. These avatars represent a challenge to protecting image rights, especially when they portray third parties. Given this scenario of large-scale virtual exposition, the violation of image rights in the metaverse and the associated legal implications have become of greater concern.

For instance, there is the key issue that users who create avatars in the image of third parties can potentially perform activities that harm the honor and reputation of the parties represented. This harm may have impacts beyond the virtual world, with real-world consequences.

When users interact via avatars, they may commit acts that would violate the law had they occurred in the real world.

Another possible discussion relates to the right of individuals to economically exploit their image – also known as the right of publicity – which is consolidated in common law systems.

The right of publicity prevents unauthorized use of images, names, and other elements intrinsic to an individual’s personality. Although Brazilian legislation does not contain specific provisions regulating the right of publicity, it does provide means to protect these rights.

In Brazil, individuals who feel their image rights have been violated in the metaverse may take their case to the courts, as well as to regulatory bodies such as the Brazilian Advertising Self-Regulation Council (Conar). Even without proof of actual harm, the unauthorized use of a third party’s image may result in the need to pay compensation to that party.

As the boundaries between the metaverse and the real world become blurrier, creators of avatars must ensure they are aware that their activity in virtual environments does not exempt them from the legal implications of violating third-party image rights or behaving in ways that may adversely affect third parties. Harming the image of others or conducting criminal acts in the metaverse will be handled with the seriousness these issues require, with consequences for those responsible.

*With the collaboration of Ana Flávia Marques, Lorena de Freitas Pereira and Nathalia Fraifeld.

For further information on image rights in the metaverse, please see our special series Intellectual Property and the Metaverse.