Elis Regina, digital necromancy, and negative presumption: a study of bill n° 3592/23 in dialogue with the European Union

Abstract

The purpose of this paper is to analyze Brazilian Bill of Rights n° 3592/23, especially the context that motivated it, namely, the recreation of the image of the singer Elis Regina via Artificial Intelligence for use in a car commercial, and its potential legal consequences, if approved. In addition, it also proposes to analyze legally the legal instrument built by this project and by the discussions that circulate around it, which can be called "presumption of refusal to use the image after death", due to the current regulations on digital inheritance and use of Artificial Intelligence technologies. Finally, it proposes a dialogue between this Brazilian legal movement and the current regulatory landscape on the subject in the European Union, focusing on the rules for using Artificial Intelligence, Copyright and Image. For this research, a case study was conducted based on the institutional responses to the commercial that used the image of Elis Regina, with support from hypothetical-deductive analytical methods. Then, a comparative approach was carried out, with bibliographic review and theoretical study. The paper is divided into three parts: first, analyzing the phenomenon of "digital necromancy"; following with an analysis of the model case; and finally conducting a comparative theoretical study, to conclude that this Brazilian case offers an important opportunity for dialogue between Brazil and the European Union, possible due to common regulatory bases on the subject, and useful by proposing a new model for legally thinking about the dilemma of using an image after the death of individuals.