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

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

by Kelsey Farish

In 2017, a machine learning algorithm was shared on Reddit 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 favourite movie clips. Although the results are often comical, deepfake sophistication and realism has rapidly improved over the last two 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 penalise any misappropriation of one’s image, photograph, or voice. By contrast, the lack of a recognised 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.

It is hoped that the article will be of interest to practitioners and academics involved in technology and intellectual property rights matters. Those working in artificial intelligence and digital media may also find the article insightful, as it aims to explain the legal landscape surrounding this disruptive new technology. Finally, given the role our selfies and snaps play in the internet ecosystem, this discussion on image rights in the age of the deepfake may be interesting to the casual reader as well.

[This is an Authors' Take post, which provides readers with an insight into current IP scholarship, featuring preliminary comments and thoughts from authors of articles accepted for publication in forthcoming issues of the Journal of Intellectual Property Law & Practice (OUP). The full text of this contribution will be made available on Advance Access soon and included in the 2020 JIPLP Special Image Rights Issue]