Hello everyone,

I’ve been asked about the legal implications of using deepfake technology, particularly face-swapping famous faces into an indie film. This is an exciting yet complex area, as it touches on both copyright and right of publicity issues, and I’d like to share some insights.

Deepfake Usage Across Contexts

Deepfake technology is a powerful tool used in various fields, ranging from propaganda and military warfare to creative industries like filmmaking. Notably, in Russia, deepfake technology has been used to create a TV series featuring the faces of famous Hollywood celebrities. Since Russian law does not recognize a right of publicity, there is no legal mechanism for these celebrities to sue for the unauthorized use of their likenesses in such cases.

However, in the United States, the legal landscape surrounding deepfake usage is different. U.S. law provides distinct protections through copyright and the right of publicity, creating significant legal risks for filmmakers who use deepfake technology without proper authorization.

Copyright Perspective

From a copyright standpoint, the use of someone’s likeness, especially a well-known figure, often involves indirect implications. While faces themselves aren’t subject to copyright, photos, videos, and other original works that capture a likeness are protected. If your deepfake involves the use of copyrighted material (e.g., video footage or images), you may be infringing the copyright owner’s rights.

Deepfake technology also raises derivative work concerns. For example, if the likeness of a famous person is directly taken from a copyrighted performance (e.g., a movie scene), the new work might be considered a derivative of the original, requiring permission from the copyright holder.

Right of Publicity Perspective

The right of publicity protects an individual’s right to control the commercial use of their name, image, and likeness. In many U.S. jurisdictions, this right extends even after death, depending on the state.

Using a famous person’s likeness in a film without consent may violate their right of publicity, particularly if it’s used for commercial purposes like promoting or distributing the film.

However, not all jurisdictions in the U.S. recognize the right of publicity. States such as Alaska, Delaware, and Wyoming currently do not have explicit right of publicity statutes. This creates potential gaps in protection, particularly for cases involving individuals who live or are portrayed in those states.

Even in jurisdictions without a right of publicity, there could be other legal causes of action, such as claims of false advertising, misappropriation, or unfair competition. These claims might be triggered if the use of the individual’s likeness creates confusion, deception, or an unfair commercial advantage.

Absence of Right of Publicity Does Not Necessarily Protect You

In jurisdictions without a specific right of publicity, such as the UK, individuals may still have recourse under other legal doctrines. The most relevant legal protection in the UK is the tort of “passing off,” which prevents unauthorized use of a person’s likeness in a way that misleads the public into believing there is an endorsement or association with that individual.

Key Points:

1. No Dedicated Law:
   Unlike many U.S. states, the UK does not have a statute specifically protecting a person’s image rights or right of publicity.
2. Passing Off as Primary Protection:
   To claim protection against unauthorized use of their image, celebrities or public figures in the UK must prove the following:
   • They have an established reputation and goodwill.
   • The unauthorized use is likely to cause confusion about an endorsement or affiliation.
   • The misuse has caused or is likely to cause damage to their reputation or commercial interests.

Similarly, while Russia lacks right of publicity laws, filmmakers in the U.S. need to be aware that legal recourse is available for unauthorized use of likenesses here. The differences in jurisdictional laws mean that global distribution of deepfake-based content may expose creators to liability in stricter regions like the U.S.

Fair Use and Transformative Use

In some cases, you might argue that the deepfake is transformative or falls under fair use, especially if it’s for satire, parody, or commentary. Courts examine whether the new work adds significant creative elements and transforms the likeness into something new. However, this is a risky defense and highly context-dependent.

Best Practices for Filmmakers

1. Obtain Consent: The safest approach is to secure written consent from the individual (or their estate, if deceased).
2. Create Original Characters: Instead of face-swapping, create original characters inspired by famous figures but distinct enough to avoid legal issues.
3. Consult an Attorney: Work with an entertainment lawyer to review your use case, especially if you plan to distribute the film in multiple jurisdictions.
4. Use in a Transformative Way: If relying on fair use or parody, ensure the usage is clearly transformative and adds significant new expression or meaning.

In summary, while deepfake technology opens exciting creative possibilities, it’s essential to navigate the legal landscape carefully. Whether you’re in the U.S., the UK, or elsewhere, the absence of explicit right of publicity laws does not guarantee legal immunity. Other doctrines, like passing off, false advertising, or misappropriation, could still apply, and it’s crucial to approach such projects thoughtfully and with legal guidance.