Deepfakes and IP law

This past month has brought a lot of attention to a myriad of important issues. However, it has been the issue of AI and the integration of deepfake abilities that has been at the forefront of legal and news networks this week.

What is a Deepfake you may ask? It is a technological phenomenon where an individuals face, and their AI cloned voice, is digitally pasted onto a video of another person. This is done with more and more seamlessness every day. It is malicious and concerning. Deepfakes are predominantly used to spread false information and defame people. Naturally, women have been the most negatively impacted as the technology has been used to generate false pornographic materials with increasing frequency.

Thanks to Nina Jankowicz, we can see how deepfakes are effecting peoples lives, predominantly women's lives, through the generation of fake porn. In an expose published at the end of June in The Atlantic, Jankowicz detailed how her experience being the target of online harassment eventually led to the use of her face in explicit videos. The creation of these videos contributed to her eventual resignation from a role in conjunction with the Biden Administration. She knows first hand how deepfakes can not only harm and disrupt lives, but also be used to "tip elections or start wars." She calls out policymakers for not taking more definitive action against the evident danger of such technology. And Jankowicz is right. If the prior head of the Department of Homeland Security's Disinformation Governance Board isn't safe from such misinformative online harassment, who is?

Currently, only eight states have regulatory measures against deepfake technology, and only four more are beginning to take action. Even with these regulations, victims often don't have protection until after deepfakes are produced, distributed, and brought to their attention. Victims can thankfully rely upon IP law to seek restorative damages. Personality rights, copyrights, and contractual relationships are commonly used to argue in court against deepfake videos. Personality rights are used to argue that deepfakes take away an individuals given right to control how and where their likeness is used. Copyright law can be implemented via the fair use defense, which we touched on in the Warhol v. Goldsmith case last week. However, copyright law is sometimes tricky in deepfake cases as most modern deepfakes are created via AI, eliminating the "Work of Authorship" provision, which details that humans must be the creating party in copyright issues. Contracts, or lack there of, are the third most common argument in cases against deepfakes. These cases are seen when the use of likeness occurs without a contract, or there is a misuse of image meaning the deepfake falls outside of the given contract guidelines.

Sadly, we all know that once something is on the internet, it is nearly impossible to remove. Deepfakes are distributed and created via AI and the internet. Their effects are currently everlasting. We need our policymakers to take action NOW, or more lives will be harmed, especially the lives of women.

YOU CAN TAKE ACTION! Change.org has a petition to have MrDeepfakes (and similar websites that promote deepfake harassment) shut down. Sign and share it today! Also, to stay up to date on this essential issue follow The Kayla Konnection on Instagram and Pinterest. Reach out and connect via LinkedIn or Email (thekaylakonnection@gmail.com) as well. My sources are linked below.

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Kayla

Jankowicz via The Atlantic Deepfake porn - Bloomberg law

Romano Law

What are deepfakes - Bloomberg