“There’s a statute of limitations problem. ‘Avatar’ came out in 2009, and one of the specifics in her case is that her jaw is, supposedly, very easily noticeable,” Seilie said. “So why did it take until James Cameron said it out loud for her to realize it was her jaw? Jurors are going to be thinking about that.”

“I don’t think that anybody involved in this, any member of the public, would have taken look at this character materially and have made the connection that it was this actress, including, by the way, it seems, the actress herself,” added attorney Simon Pulman with Pryor Cashman.

Kilcher can’t sue for copyright because it’s her own face, so instead they’re suing based on Right of Publicity, where typically a person’s name or likeness is being used to sell a product in a commercial without their knowledge, and that depends on the person being very recognizable. Aside from the fact that she’s blue, seven foot tall, and is also played by Zoe Saldana, even the side by side isn’t 100 percent obvious to the naked eye. The lawsuit also includes a lot of lengthy rationales that this is cultural appropriation of an Indigenous person that has nothing to do with the legality of Right of Publicity. And it even makes the assertion that Cameron violated a deepfake revenge porn law because Neytiri has a love scene in “Avatar”; Seilie said that issue is just a “non-starter” almost certainly to be tossed.

But this remains an interesting conversation piece worthy of the attention of actors because AI now makes it possible to take the features of multiple people’s likenesses, without any other creative filter, and turn them into something new. Take Tilly Norwood or other “synthetic” actors. AI models have to be trained on something, and while Tilly might not look like anyone in particular, she’s likely trained on a number of images of women and could share features with someone in particular.

“What if you could somehow prove and reverse-engineer the creation process and figure out that, yes, in fact, Tilly Norwood uses the chin of a particular famous actor,” Seilie said. “That’s a question that hasn’t really been answered yet. Obviously, there’s a sliding scale here. If you’re lifting a likeness from one actress, it’s easier to say that that’s a violation of the right of publicity. But what if you’re combining two actresses? What if you take one actress’s body and one actresses head?”

Pulman notes there are recent examples in which a court has subpoenaed the prompts a person used in creating an AI-generated image. So in the future, there could very easily be claims that if an artist was found to have directly prompted a model to generate an image using a specific actor’s body part, that could be enough for a jury to deem it a violation. Right now though, Pulman says it would have to be a “very clear smoking gun,” like prompting the generation of Angelina Jolie “but we’ll make her blonde.”

Should the Kilcher/”Avatar” case make it to trial, which would be unlikely, Seilie says it would inevitably be one that would set precedent and be cited moving forward in determining what constitutes likeness.

“Does likeness mean the full body and face, or does the word likeness, can that be applied to parts?,” Seilie said. “I don’t think that’s been fully fleshed out, because until recently, we don’t really have technology that could hone in on individual parts of a likeness as opposed to the whole thing. That’s an area where technology raises new questions for existing doctrines of law, and it’ll be interesting to see how that’s approached.”

Seilie and Pulman say, that when it comes to complaints like this, it’s likely that actors will soon get more bargaining power with the studios and others to negotiate the value of their likenesses. It will include negotiating over specific features of a person, and studios or commercial agencies will negotiate individually with each performer to figure out just how much is permissible to be used, whether they’re allowed to use it in perpetuity, or in what specific ways. So while this case may not set precedent today, they’re questions all actors should be prepared for.

“We live in a world where actors are routinely scanned in high resolution for various purposes. They’re scanned for motion pictures, visual effects, and for video games. Even some of the agencies have unilaterally gone ahead and scanned their clients with the notion that then their clients can control their digital replicas,” Pulman said. “If I were an actor, I thought this for some time, you want to make sure your reps are very, very clearly from a contractual perspective setting forth how your digital replica can be used, how it will be stored, whether it will be destroyed after use, etc.”