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We don’t need a complex new body of law for this issue. It will be litigated as a likeness rights case because those laws are simple and clear and there is plen

by yodon 9y ago

We don’t need a complex new body of law for this issue. It will be litigated as a likeness rights case because those laws are simple and clear and there is plenty of legal precedent to fall back on, including doctored images. If it’s your face in the image you have likeness rights in the image. If a photographer takes your photo and uses your image in a way that makes you and your face significant in the image, they need to have a model assignment agreement signed by you on file or they are setting themselves up for a lawsuit and a world of pain in the event the image goes big. Yes, there are exceptions to the likeness rights laws, but deepfake swaps are unlikely to fit into those exceptions (and yes, California law in particular makes clear those rights extend to dead celebrities through their families or the people their families have transferred the rights to, and it’s very hard to have your image go big and not have it go to California). This is one of the things that makes the Flickr Creative Commons flag so dangerous. The photographer is saying “you can use this commercially” but 99.9% of images on Flickr are snapshots taken by amateurs with no rights assignments from the subjects. There have been and continue to be lawsuits where the photographer is found liable for the commercial use of their snapshots, without their knowledge, because they flagged it as CC and someone did and the photo subject got upset and sued.

dragonwriter 9y ago
> That’s surprising to me as likeness rights will be how these issues are litigated because it’s simple and clear and there is tons of legal precedent. Likeness rights (aka personality rights aka right of publicity) aren't all that simple or clear, are rapidly evolving with different forces pulling them in different directions, vary considerably between jurisdictions, etc., and, because they are rapidly evolving and inconsistent at the state level, many aspects of them may not be well-tested against overriding Constitutional provisions (First Amendment concerns.)
- yodon 9y ago
  All that you say is true, but it’s still a much simpler, more battle tested legal arena than most of the strategies discussed in that article (and I suspect that the core set of retained rights is likely to remain enough to punish deepfakers, regardless of the evolution of the case law over the next few years)
  - dragonwriter 9y ago
    > I suspect that the core set of retained rights is likely to remain enough to punish deepfakers Most personality rights / right of publicity regimes apply to promotional use and a subset of commercial use (California, noted frequently for having a generous regime for such rights, still explicitly notes that content merely being monetized with advertising is not necessarily enough to qualify for protection.) I don't think that covers most deepfakes.
randyrand 9y ago
Are celebrity likenesses protected? Politicians? Is putting Trumps face on porn or other worse going to become illegal? Or those Ajit Pai images.. haha. But frankly, I'm okay with it. I think these celebrity/trump/ajit images are clearly protected under the first amendment. And I'm glad they are. Of course there is a difference between something having more sexual than political gratification. But that seems like an odd and murky line to draw here.

by yodon 9y ago

dragonwriter 9y ago

> That’s surprising to me as likeness rights will be how these issues are litigated because it’s simple and clear and there is tons of legal precedent. Likeness rights (aka personality rights aka right of publicity) aren't all that simple or clear, are rapidly evolving with different forces pulling them in different directions, vary considerably between jurisdictions, etc., and, because they are rapidly evolving and inconsistent at the state level, many aspects of them may not be well-tested against overriding Constitutional provisions (First Amendment concerns.)

yodon 9y ago
All that you say is true, but it’s still a much simpler, more battle tested legal arena than most of the strategies discussed in that article (and I suspect that the core set of retained rights is likely to remain enough to punish deepfakers, regardless of the evolution of the case law over the next few years)
- dragonwriter 9y ago
  > I suspect that the core set of retained rights is likely to remain enough to punish deepfakers Most personality rights / right of publicity regimes apply to promotional use and a subset of commercial use (California, noted frequently for having a generous regime for such rights, still explicitly notes that content merely being monetized with advertising is not necessarily enough to qualify for protection.) I don't think that covers most deepfakes.

randyrand 9y ago

Are celebrity likenesses protected? Politicians? Is putting Trumps face on porn or other worse going to become illegal? Or those Ajit Pai images.. haha. But frankly, I'm okay with it. I think these celebrity/trump/ajit images are clearly protected under the first amendment. And I'm glad they are. Of course there is a difference between something having more sexual than political gratification. But that seems like an odd and murky line to draw here.