The Talking Dead: who owns the voices of the deceased?

Darth Vader's voice in Fortnite, created using AI cloning of James Earl Jones, sparks controversy. (Image Credit: Epic Games)

On May 16, Darth Vader joined Fortnite: Battle Royale as part of a collaboration with Disney. In itself, this would barely have made news outside the gaming community. Iconic characters routinely drop into gaming universes as part of cash-in crossovers.

What’s different this time is that Vader’s voice, based on James Earl Jones' iconic portrayal in the movie franchise, has been created using AI-enabled synthetic cloning rather than a human actor.

James Earl Jones passed away in September last year.

Before we jump into dissecting the rights and wrongs here, let’s get the all the ducks in a row:

Two years before his death, James Earl Jones signed a deal with Lucasfilm and a Ukraine-based AI company, allowing the studio to use his voice for Darth Vader.

More recently, Epic Games took permission from the deceased actor’s estate to use the voice, so this isn’t theft. "We’re honored to feature the voice of the late Mr. Jones and we thank his estate for the opportunity to make this happen for players," Epic wrote on Fortnight’s official blog, which includes a quote from the family.

The blog quotes the actor’s family as well: “James Earl felt that the voice of Darth Vader was inseparable from the story of Star Wars, and he always wanted fans of all ages to continue to experience it. We hope that this collaboration with Fortnite will allow both long-time fans of Darth Vader and newer generations to share in the enjoyment of this iconic character.”

For Fortnite, this is a slick technical achievement — because it’s not just recreating pre-written lines in James Earl’s voice. By pressing a special button, players can talk to Darth Vader using their headsets, and the Sith Lord responds using a combination of conversational AI and voice cloning. “Your whole team will be able to take turns talking to the Dark Lord… Ask him all your pressing questions about the Force, the Galactic Empire... or you know, a good start for the last Storm circle. The Sith Lord has opinions.”

All fun and games, you’d think. Except that Epic Games has run into trouble on two fronts.

The first is stupid, mildly funny, and entirely predictable: players are making Darth Vader say the worst things. When James Earl Jones’ estate signed off, they probably didn’t expect him to be spouting F-bombs or referencing ‘skibidi toilets’.

This has left the game’s engineers scrambling to push out hotfixes with additional guardrails that prevent James Earl’s AI voice from breaking community guidelines.

The second problem they’ve run into is significantly more serious.

The Hollywood actors’ union has filed an unfair labour practice charge against the makers of the game, alleging that the company replaced human actors’ work by generating Darth Vader’s voice using AI.

The union clarified that it supports the rights of members and their estates to control the use of their digital replicas. “However, we must protect our right to bargain terms and conditions around uses of voice that replace the work of our members, including those who previously did the work of matching Darth Vader’s iconic rhythm and tone in video games,” the union said.

So, even with permission from James Earl Jones’s estate, some uncomfortable questions remain. Questions that go beyond Fortnite, beyond Vader, and straight into the future we’re all signing up for. Mainly, what does ‘consent’ mean when technology can take a voice (or a face) and use it in ways that no one could have imagined when the deal was made?

And if AI keeps evolving at this pace, what should ordinary people be thinking about when they sign work contracts that regularly hand over all manner of rights to employers. The tools that make Vader talk today could easily be applied to your voice tomorrow. Consent you give today could cover technology that isn’t even invented.

Should your future self — or your digital ghost — be allowed to say things you’d never agree to, simply because the fine print allowed it today?