At the Intersection of AI, Face Swapping, Deep Fakes, Right of Publicity, and Litigation

Websites like GitHub, Reddit and others offer developers and hobbyists dozens of repositories containing artificial intelligence deep learning models, instructions for their use, and forums for learning how to “face swap,” a technique used to automatically replace a face of a person in a video with that of a different person. Older versions of face swapping, primarily used on images, have been around for years in the form of entertaining apps that offered results with unremarkable quality (think cut and paste at its lowest, and photoshop editing at a higher level). With the latest AI models, however, including deep neural networks, a video with a face-swapped actor–so-called “deep fake” videos–may appear so seamless and uncanny as to fool even the closest of inspections, and the quality is apparently getting better.

With only subtle clues to suggest an actor in one of these videos is fake, the developers behind them have become the target of criticism, though much of the criticism has also been leveled generally at the AI tech industry, for creating new AI tools with few restrictions on potential uses beyond their original intent.  These concerns have now reached the halls of New York’s state legislative body.

New York lawmakers are responding to the deep fake controversy, albeit in a narrow way, by proposing to make it illegal to use “digital replicas” of individuals without permission, a move that would indirectly regulate AI deep learning models. New York Assembly Bill No. A08155 (introduced in 2017, amended Jun. 5, 2018) is aimed at modernizing New York’s right of publicity law (N.Y. Civ. Rights Law §§ 50 and 50-1)–one of the nation’s oldest publicity rights laws that does not provide post-mortem publicity rights–though it may do little to curb the broader proliferation of face swapped and deep fake videos. In fact, only a relatively small slice of primarily famous New York actors, artists, athletes, and their heirs and estates would benefit from the proposed law’s digital replicas provision.

If enacted, New York’s right of publicity law would be amended to address computer-generated or electronic reproductions of a living or deceased individual’s likeness or voice that “realistically depicts” the likeness or voice of the individual being portrayed (“realistic” is undefined). Use of a digital replica would be a violation of the law if done without the consent of the individual, if the use is in a scripted audiovisual or audio work (e.g., movie or sound recording), or in a live performance of a dramatic work, that is intended to and creates the clear impression that the individual represented by the digital replica is performing the activity for which he or she is known, in the role of a fictional character.

It would also be a violation of the law to use a digital replica of a person in a performance of a musical work that is intended to and creates the clear impression that the individual represented by the digital replica is performing the activity for which he or she is known, in such musical work.

Moreover, it would be a violation to use a digital replica of a person in an audiovisual work that is intended to and creates the clear impression that an athlete represented by the digital replica is engaging in an athletic activity for which he or she is known.

The bill would exclude, based on First Amendment principles, a person’s right to control their persona in cases of parody, satire, commentary, and criticism; political, public interest, or newsworthy situations, including a documentary, regardless of the degree of fictionalization in the work; or in the case of de minimis or incidental uses.

In the case of deep fake digital replicas, the bill would make it a violation to use a digital replica in a pornographic work if done without the consent of the individual if the use is in an audiovisual pornographic work in a manner that is intended to and creates the impression that the individual represented by the digital replica is performing.

Similar to the safe harbor provisions in other statutes, the New York law would provide limited immunity to any medium used for advertising including, but not limited to, newspapers, magazines, radio and television networks and stations, cable television systems, billboards, and transit advertising, that make unauthorized use of an individual’s persona for the purpose of advertising or trade, unless it is established that the owner or employee had knowledge of the unauthorized use, through presence or inclusion, of the individual’s persona in such advertisement or publication.

Moreover, the law would provide a private right of action for an injured party to sue for an injunction and to seek damages. Statutory damages in the amount of $750 would be available, or compensatory damages, which could be significantly higher.  The finder of fact (judge or jury) could also award significant “exemplary damages,” which could be substantial, to send a message to others not to violate the law.

So far, AI tech developers have largely avoided direct legislative or regulatory action targeting their AI technologies, in part because some have taken steps to self-regulate, which may be necessary to avoid the confines of command and control-style state or federal regulatory schemes that would impose standards, restrictions, requirements, and the right to sue to collect damages and collect attorneys’ fees. Tech companies efforts at self-regulating, however, have been limited to expressing carefully-crafted AI policies for themselves and their employees, as well as taking a public stance on issues of bias, ethics, and civil rights impacts from AI machine learning. Despite those efforts, more laws like New York’s may be introduced at the state level if AI technologies are used in ways that have questionable utility or social benefits.

For more about the intersection of right of publicity laws and regulating AI technology, please see an earlier post on this website, available here.