Deep Fakes

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By Bobby Desmond, Esq.

Legislative panic about deep fakes skips over NY for now, but changes to right of publicity could be coming soon

It seems like everyone these days is freaking out about fake news and deep fakes - digitally altered photos, videos, and sounds that are sometimes confusingly realistic.

Many states seem most concerned with the recent and growing trend of deep fake pornography. For example, Virginia recently expanded its revenge porn statute to include criminal sanctions for the unauthorized dissemination of a falsely created videographic or still image that depicts another person in a state of nudity or sexual exposure with the intent to coerce, harass, or intimidate another person. See Virginia Revenge Porn Statute ยง18.2-386.2. Unlawful dissemination or sale of images of another; penalty.

In Hollywood, many individuals and organizations including the actors guild, SAG-AFTRA, support a crackdown on deep fake pornography, which often target celebrities like Wonder Woman actress Gal Gadot, and advocate for protecting an actor's right to control the use of their likeness in digitally altered contexts.

On the other side of the argument, the Motion Picture Association of America and other industries have voiced their opposition to deep fake bills and warned about potential First Amendment violations that are likely to occur if a broadly worded statute prohibits content creators from exercising their free speech rights.

From a different front, lawmakers in other states are more concerned with the political implications of deep fakes. For example, Democratic California Assembly member Marc Berman introduced a state bill that would make it a crime to knowingly or recklessly share deceptive audio or visual media of a political candidate within 60 days of an election with the intent to injure the candidate's reputation or to deceive a voter into voting for or against the candidate.

After a crafty Internet user slowed down and dropped the pitch of a video of Speaker of the House Nancy Pelosi to make it appear as if she was drunk and slurring her words, federal lawmakers jumped into the fray and proposed their own deep fake bills.

Democratic U.S. Representative Yvette Clarke of New York introduced the Defending Each and Every Person from False Appearances by Keeping Exploitation Subject to Accountability Act of 2019 in the House of Representatives in June. The DEEP FAKES Accountability Act would create criminal and civil penalties for failing to disclose deep fakes or for altering the disclosures on deep fakes in addition to a private right of action for those injured by deep fakes. The bill includes provisions for both deep fake porn and political deep fakes created to influence elections and other policy debates.

Republican U.S. Representative Pete King of New York introduced the Deep Fakes Report Act in July, which would require the Secretary of Homeland Security to publish an annual report on the use of deep fake technology. The Senate Artificial Intelligence Caucus has also sponsored a companion version.

Republican U.S. Representative John Katko of New York introduced the Stop Harmful Image Exploitation and Limiting Distribution Act of 2019 in May of this year. The SHIELD Act is a federal revenge porn bill that does not directly address deep fakes, but would create federal criminal liability for sharing private sexual images without consent.

The supposed plight of deep fakes was not one of the topics in the more than 300 bills that were passed during New York's latest legislative session, which ended on June 19, 2019. However, proposed legislation would have reassessed and readdressed publicity and privacy rights in the state, including new civil liability for certain nonconsensual uses of deep fakes. Though stalled, the bill is expected to make a comeback during New York's next legislative session later this year.

The proposed law would create civil liability in instances where an individual uses a digital replica of an actor, singer, dancer, musician, or athlete in a manner that is intended to and does create the reasonable impression that the replicated individual is performing the activity for which the replicated individual is known. The proposed law includes certain free speech carve outs where consent would not be required including instances of parody, satire, commentary, or criticism; works of political or public interest or newsworthy value; de minimis or incidental uses; and certain broadcast and streaming reproductions.

Separately, the proposed law would also create civil liability for deep fakes pornography when the use is intended to depict and does falsely depict an individual as performing in the nude or as engaging in sexual acts they did not perform. Consent would not be required for deep fakes pornography if there is a legitimate public purpose, political or newsworthy value, or for commentary or criticism.

The proposed law would also create limited immunity for the owners and employees of newspapers, magazines, radio, television, and cable stations, and other advertisers that transmit advertising that uses such deep fakes, unless the owner or employee had actual knowledge of the unauthorized use.

Additionally, the proposed law would vastly change publicity rights in ways that have nothing to do with deep fakes such as the establishment of a person's name, picture, voice, and signature as freely transferable property rights, above and beyond the state's current protections which are primarily based on privacy concerns.

While such a change would allow celebrities to more easily monetize their persona, Jennifer Rothman of Loyola Law School pointed out that establishing an alienable property right over areas traditionally considered publicity rights would have unexpected consequences and present tricky legal questions like whether creditors could take ownership over a celebrity's publicity rights in the event of bankruptcy or whether a spouse could claim an ownership interest in a celebrity's publicity rights in divorce.

The law could make possible the scenario in a recent episode of the Netflix science fiction anthology series Black Mirror. In the episode, real life popstar Miley Cyrus plays a fiction popstar who is placed in a vegetative state by her abusive aunt-turned-manager who then creates a digital version of the fictional popstar to tour the world while the physical popstar remains subdued.

Of course, this extreme example is admittedly far-fetched, but one has to wonder what the other legal ramifications of this bill could be. Jeffrey Bennett, the deputy general counsel of SAG-AFTRA, has warned that an actor's livelihood could be put at risk if a licensee used a digital version of an actor in a new movie to replace the real actor altogether. Imagine a scenario where Hollywood's leading gents and ladies were not constrained by time and space but could instead license out their likeness to digitally appear in a countless number of movies every year. While this would negatively impact living actors competing for roles, it could help support the heirs of a deceased actor by licensing out the actor's likeness to star in a movie posthumously.

Bobby Desmond is an Associate Attorney at Walters Law Group, where he focuses his practice on First Amendment, Internet law, and intellectual property issues. More information about his qualifications and experience can be found here: https://www.firstamendment.com/our-team/ Nothing herein is intended as legal advice.

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This page contains a single entry by Julie Houth published on August 3, 2019 12:00 AM.

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