Do Deepfakes Pose a Golden Opportunity? Considering Whether English Law Should Adopt California's Publicity Right in the Age of the Deepfake

13 Pages Posted: 17 Jul 2020

Date Written: September 1, 2019

Abstract

In 2017, a machine learning algorithm was published online as a tool to insert faces of celebrity actresses into pornographic videos. This “deepfake” phenomenon has since spread across social media, and is no longer confined to sexual contexts. The technology can be used to swap faces in film scenes, or even digitally insert people into their favorite movie clips. Although the results are often comical, deepfake sophistication and realism has rapidly improved over the last several years, making them difficult to spot as fake. There is a growing concern that such videos could be used to extort, intimidate, or otherwise defame an individual. In such instances, could the victim portrayed in the deepfake bring a lawsuit against its creator?

In California, perhaps. There, a person has a statutory and common law “publicity right”, which is a cause of action used to prevent or penalize any misappropriation of one’s image, photograph, or voice. By contrast, the lack of a recognized image right under English law can be a source of frustration amongst claimants, and debate amongst lawyers. Drawing upon her knowledge of English and Californian law, the author explores whether or not California’s codified publicity right is superior to that of the English piecemeal approach, using the deepfake phenomenon as a case study.

Keywords: Deepfakes, Publicity Rights, Personality Rights, Image Rights, English Law, California Law, Media Law, Deep Fakes, Artificial Intelligence

Suggested Citation

Farish, Kelsey, Do Deepfakes Pose a Golden Opportunity? Considering Whether English Law Should Adopt California's Publicity Right in the Age of the Deepfake (September 1, 2019). Available at SSRN: https://ssrn.com/abstract=3648960 or http://dx.doi.org/10.2139/ssrn.3648960

Kelsey Farish (Contact Author)

DAC Beachcroft ( email )

25 Walbrook
London, EC4Y
United Kingdom

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
65
Abstract Views
315
rank
410,591
PlumX Metrics