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Florida Entertainment and Sports Law Review

Abstract

In the context of authorship, the question “What’s in a name?” has never been more urgent. As generative artificial intelligence (AI) blurs the boundaries between human and synthetic creativity, the function of an author’s name is increasingly symbolic, performative, and legally unstable in the digital age. It follows that the question “What’s in a name?” may become the key to redefining authorship itself. Lil Miquela, also known as Miquela Sousa, is a computer-generated influencer with millions of followers that embodies the shift from human authorship to algorithmic persona and might serve as a suitable test case.

As leading scholars caution that “Miquela will not be the last of her kind; let us be prepared,” the pressing question arises: Can our current Intellectual Property (IP) framework, particularly copyright law and the right of publicity, adequately respond to the emergence of the virtual celebrity? Namely, are we entering a post-subject era of celebrity where the “face” is less important than the interface? Time’s inclusion of Miquela among the twenty-five most influential people on the internet in June 2018 underscores that the virtual influencer is more than a technological or artistic novelty. We are facing a new legal subjectivity that destabilizes longstanding boundaries between subject and object, author and avatar.

As digital media increasingly blurs the lines between news, entertainment, and commerce, the unchecked expansion of publicity rights threatens to destabilize the fragile equilibrium between creative freedom, public interest, and proprietary control. Regarding this framework, viral social media avatars problematize traditional legal frameworks of authorship, originality, and persona even more than their living counterparts. Meanwhile, copyright and publicity rights remain rooted in eighteenth- and nineteenth-century models of Romantic authorship, heavily influenced by three Enlightenment-era philosophers, Immanuel Kant, G. W. F. Hegel, and J. G. Fichte.

The conceptions of identity, authorship, originality, and property that underpin both copyright law and the framework of publicity rights are increasingly unsustainable in the context of contemporary digital modes of creativity and self-representation. Part I draws on Schopenhauer’s aesthetic metaphysics in The World as Will and Representation to critique the prevailing legal models of authorship and identity.

By positing that the self is merely a representation, a phenomenal illusion serving the Will, Schopenhauer anticipates a legal reality in which authorship and personhood no longer cohere. Schopenhauer’s conception of the genius as one who suppresses the Will to intuit universal ideas, morphing into “pure subject of knowing,” undermines copyright’s emphasis on both expression as personal authorship and the idea/expression dichotomy. Hence, Schopenhauer provides the philosophical groundwork for a post-authorial legal theory.

Schopenhauerian applications are particularly apt in an era in which content is increasingly generated by machines, avatars, and networks rather than by autonomous human agents. In offering originality without self and serving as a conceptual bridge to postmodern critiques of celebrity culture and the disproportionate legal authority granted to authorship, it proposes a shift from ownership to stewardship, from identity to relation, and from originality to perception, aligning law with the ontological conditions of cultural production in the digital age.

Moving from author to interface, Part II focuses on Foucault’s framework, aligning with Schopenhauer’s metaphysics, which similarly dismantles the notion of the autonomous individual. In his seminal lecture, What Is an Author?, Michel Foucault deconstructs the traditional view of the author as a sovereign originator, proposing instead that authorship functions as a classificatory and institutional device. The “author-function,” according to Foucault, is part of his understanding of power as being primarily based on law, prohibition, and repression, thereby creating a juridico-discursive construct that arises from the needs of legal and institutional regulation.

Virtual celebrities are produced through processes of surveillance, optimization, and audience analytics, precisely the mechanisms of Foucauldian power/knowledge. The synthetic body, ever-pliable and governed by performance metrics, becomes the ideal of disciplinary authority: a subject that does not resist but performs endlessly. Corporations, as creators and curators of virtual celebrities, govern identity itself, acting as epistemological sovereigns who determine what is seen, who is heard, and how subjectivity is constructed. In Foucauldian terms, this is not authorship; it is governance.

Part III deconstructs the virtual author-function, suggesting a post-authorial legal paradigm and blueprint policy in terms of contribution and control, drawing lessons from Schopenhauer and Foucault. If ownership of a VI is an ontological governance over an interface rather than a persona, the question becomes what sort of legal subjectivity we are prepared to recognize. Consequently, the gist of the matter is not the identity of the VI, but ours.

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