For content creators, their likeness is often their most valuable asset. Their audience can trust when endorsement of a certain product or service comes from them. But can you truly trust every video or photo you see on the internet? The prevalence of deepfakes on the internet using the visual likeness, and at times, even the voice of celebrities, creators, and other artists is rising, and the remedies available for such unauthorized use are, at present, unclear.
Although many social media platforms are racing to implement programs to proactively identify and takedown manipulated media containing deepfakes, videos and images continue to be posted every day, and with the power of AI behind them, it can be difficult to counteract that volume. In the interim, users who are victims of deepfakes should take steps to educate themselves on the current and future potential remedies they have.
When evaluating deepfake legal claims, complainants typically have three options: (1) request removal of the content for violation of intellectual property (IP) rights, (2) pursue a complaint for violations of privacy rights, and/or (3) file civil or criminal charges. The first route tends to yield the most immediate results and is typically the most cost-effective. The Digital Millennium Copyright Act (DMCA), while frequently used to strike content containing unauthorized use of copyrighted music or videos, can also provide protection for manipulated content containing one’s likeness. Filing a takedown claim is often relatively simple, albeit platform specific. If the content is on YouTube, the takedown process may look different than content on Instagram or TikTok, for example. Anyone can file these claims themselves without an attorney, making this option the most accessible.
As for the second option, without federal legislation like the European Union’s General Data Protection Regulation (GDPR), US privacy laws are primarily state-specific. Researching the remedies available to you within your state is a great place to start when deciding whether pursuing a privacy rights violation is the right option for you. States like California, Texas, Illinois, and New York have cracked down on such violations via regulations like the California Privacy Rights Act (CPRA), Texas Identity Theft Enforcement and Protection Act, Illinois Right of Publicity Act, and the New York SHIELD Act respectively. These laws provide various avenues for individuals to seek remedies for privacy violations involving digital forgery or deepfakes, though the legal landscape is still evolving.
If all else fails, aggrieved parties can pursue criminal or civil charges with the help of an attorney. Criminal claims of identity theft, cyber harassment, or fraud can lead to fines and even imprisonment for the perpetrator, while civil charges for defamation, emotional distress, and/or right of publicity can provide the victim with compensation for harm caused. Both have burdens of proof that may prove difficult to meet, particularly when simply identifying the transgressor is often a challenge. Still, legal teams across the U.S. have been successful in prosecuting egregious cases of manipulated media containing deepfakes.
While the current remedies available to affected individuals are somewhat limited, on the federal level, there is hope in proposed legislation. The Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act would largely preempt state laws to create a workable national standard to hold individuals, companies, and platforms liable for their part in perpetuating deepfakes and digital forgery. The bill is currently being contemplated by the House of Representatives, and if passed, would create the first consistent nationwide right of publicity. For now, navigating the legal landscape as a victim of deepfakes can be tricky, and it is important to be familiar with your rights and remedies. We encourage anyone affected by manipulated media to seek legal advice to best protect their interests against these sophisticated threats.
If you need assistance in the areas of AI, digital media, and/or copyright infringement, please contact our attorneys here.