Continuing the proactive thoughts on deep fakes that are coming our way, Jesse Lempel publishes a post on Lawfare concerning a possible approach using current law on how to attack those who would generate deep fakes, at least domestically:
But there’s another form of intellectual property that doesn’t turn on ownership of a particular image or work: the “right of publicity,” which, as one court explained, “is an intellectual property right of recent origin which has been defined as the inherent right of every human being to control the commercial use of his or her identity.” The right of publicity is a state law claim recognized in most states, whether by statute or common law (with slight variation among states), and is frequently invoked by celebrities seeking to prevent a business from unauthorized use of their images or identity in an advertisement. (For greater detail, see Jennifer Rothman’s Roadmap to the Right of Publicity.)
Could a victim of a deep fake posted on Facebook or Twitter bring a successful right-of-publicity claim against the platform for misappropriating “the commercial use of his or her identity”? This is a tough question that has not yet been tested in the courts. Such a claim would need to get over three basic hurdles: (1) fitting the right of publicity into the Section 230 intellectual property exception; (2) counting deep fakes as “commercial use” of identity for right-of-publicity claims; and (3) First Amendment protections on free speech.
I’d never heard of the Right of Publicity before. Jesse goes on to analyze this approach, pointing out possible pitfalls and adverse previous rulings. It’s an interesting position to take on what is, quite frankly, a frightening future development for those who value a stable society.
