My face is yours: facial recognition software and copyright ownership

Abstract

The popular NBA 2K series include a facial recognition software that scans the user's face to generate a lookalike avatar. However, end user licence agreements provide for all intellectual property rights, including copyright, to be licensed or assigned to game publishers or developers. Consequently, the user may have no say whether an avatar with their facial features may be used, for instance in advertising for the game. In addition, the facial features stored in the game may be biometric data, and thus subject to strict data protection rules. This paper will analyse whether the avatar generated using a face scan is a copyrightable work of authorship. The analysis questions whether the face scan fits into different categories of works; photography, film and databases, including the sui generis photography and database rights. It concludes that copyright fails to protect the individual's facial features. Even so, the ownership clause in licence agreements on the one hand and the facial features as biometric data on the other further complicate the question of what the individual can assert as his own.