This is a relevant question from the verge. If current laws are insufficient, I'm sure we'll see some proposed and passed like those addressing revenge porn.
My question would if there would be a diff btwn public person (aka famous, known) and run of the mill hoi polloi. Famous personalities in some circumstances have less recourse in terms of privacy.
IMHO We really need to get a handle on something akin to copyright to cover our own faces and identity in general. At the moment companies (especially social networks) can do so much stuff with the likenesses of total strangers with zero oversight.
How about actors playing the roles of (still living) real people in theatre and movies? Would they suddenly need permission?
Should the (many!) Elvis impersonators need a licence from his estate?
Impersonating others isn't a new issue, we already have a quite settled body of law about that and centuries of weird edge cases. I don't see a radical difference brought in by technology here. IMHO the treatment of making face-swapped porn videos (or distributing them, which is a quite different case) should be the same as the currently established treatment of painting (or distributing) a realistic painting of someone you know in a pornographic pose - whatever that treatment is.
> Impersonating others isn't a new issue, we already have a quite settled body of law about that
Right of publicity / personality rights are actually a fairly actively evolving area of law (and one with considerable variation between jurisdictions, even with the US), not an area of settled consensus.
How about actors playing the roles of (still living) real people in theatre and movies? Would they suddenly need permission?
Actually, the way the law currently works...they might (to avoid one or more tort cases for invasion of privacy, defamation, and/or publicity rights). Studios will rename characters in biopics if they can't secure rights to the person the character was based on. Like all things in the law, it is a matter of context. A biopic or other media "based on a true story" may require the permission of the people portrayed in it. A satire generally would not...The law is complicated like that.
Should the (many!) Elvis impersonators need a license from his estate?
Elvis is dead...The publicity rights of the dead are generally minimal and the invasion of privacy rights nonexistent...Also, the Elvis estate is generally okay with impersonators because for the most part they don't harm (i.e., defame) his image. They have gone after impersonators who they believed misappropriated Elvis' image for defamatory purposes.
IMHO the treatment of making face-swapped porn videos (or distributing them, which is a quite different case) should be the same as the currently established treatment of painting (or distributing) a realistic painting of someone you know in a pornographic pose - whatever that treatment is.
Under the current law, that is several torts: Invasion of privacy, publicity rights, and defamation...
>Studios will rename characters in biopics if they can't secure rights to the person the character was based on.
What circumstances would require a film production to ask permission of a real person before an actor could portray him?
E.g. The film "The Social Network" didn't ask Mark Z for permission to portray him in an unflattering way:
IMHO the distinction is that situation the events must be true. The person can't prevent you from portraying the facts, but if you wan't to take some "artistic liberty" about what happened, then you'd better either get their permission or change their name.
Defamation would not apply because they didn't make knowingly false statements about him, or at least claims that they didn't have some historical source for like roommates or classmates. (The higher standard applies because he is a public figure.)
Invasion of privacy did not apply because he was a public figure and held to the higher standard for IOP claims. Pretty much everything in the movie has already been revealed before, so there isn't anything private that was revealed in the movie itself.
Mark Z could have had a case for publicity rights. The only problem is...what damages did he suffer? It's likely that his legal team realized that they could only ever win a relative pittance in damages but not block the distribution of the movie, and suing would just trigger the Streisand effect, so they just did nothing. (His damages would likely have been based on the amounts paid to other celebrities for their life stories...usually in the range of $250k to $5 million, a pittance for a billionaire.)
> How about actors playing the roles of (still living) real people in theatre and movies? Would they suddenly need permission?
I would certainly bloody hope they need permission. You have the usual caveats regarding the public interest for things, but I mean, one could argue a director should at least have one face to face conversation with someone they're including in a movie.
> Should the (many!) Elvis impersonators need a licence from his estate?
I think it's super creepy how widespread and how effectively public domain Elvis' image, act, and etc. is. He's been impersonated, lampooned, parodied, etc. so many times over. I mean you can't deny his cultural impact, but I don't know. I find it unsettling.
> Impersonating others isn't a new issue, we already have a quite settled body of law about that and centuries of weird edge cases. I don't see a radical difference brought in by technology here. IMHO the treatment of making face-swapped porn videos (or distributing them, which is a quite different case) should be the same as the currently established treatment of painting (or distributing) a realistic painting of someone you know in a pornographic pose - whatever that treatment is.
More to the point: I'm not talking about impersonation, I'm talking about the use of one's likeness for personal, commercial, or illicit purpose without that individual's knowledge or consent, and frankly I find HN's overall response to this a little alarming. It seems (though this admittedly small and totally not even remotely scientific sample) that the tech-inclined don't seem to care much for privacy rights when it stops them from doing objectively cool things.
> We really need to get a handle on something akin to copyright to cover our own faces and identity in general.
While the details may need tweaked, many jurisdictions already have “something akin to copyright to cover our own faces and identity in general”, under the name “personality rights” or “right of publicity”.
"Many jurisdictions" =/= "all jurisdictions", and in our increasingly non-local economic systems, laws that vary by area are problematic and often go unenforced.
> in our increasingly non-local economic systems, laws that vary by area are problematic and often go unenforced.
More often,
“in our increasingly non-local economic systems”, laws (especially civil laws, where the complaining party chooses whether and where to pursue violations) that vary by area are effectively enforced at the level of the most favorable (to the complaining party) regime available, rather than being unenforced.
Joe Everyman has as much access to private actions and government support from his own jurisdiction as ever, and government agencies have often shown themselves willing to conduct enforcement action against foreign-based actors. Sure, the poor often have less be edit from the laws on the books than those with more resources for advocacy, but that's a near universal constant that's orthogonal to the issues raised in the thread.
We've actually had this as part of the US legal system since at least the rise of Hollywood...
The reason social networks and other apps can get away with it is because you agree to let them use images of you posted to the network for commercial purposes as part of the Terms of Service you agree to when you use the service. In the absence of that provision in a ToS, you would have a very valid claim for appropriation of image if a social network used a picture of you.
These TOSs do not extend to other pictures of you. Thus, for example, Facebook couldn't run a commercial with a picture of you that was posted to Twitter but not Facebook.
I thought you had to give consent to have your likeness used? Isn't that why people's faces are blurred out in videos sometimes? And athletes certainly have recourse if their likeness is used without consent, so I'd imagine that applies to the rest of us.
I'm not a huge fan of The Verge and Vox, but this is clearly amoral - I'm not sure any reasonable argument could be made for involving someone in a sexual situation without their consent.
I'd expect the law to catch up soon, and that to happen after the issue is made more common once Reddit's non-consensual deepfakes goes more viral than it already has.
Edit: replying to the flagged response below, which I disagree with but which I think deserves a reply:
By immoral, I mean hurting other people without consent. I do not believe any activity that doesn't hurt other people is immoral, though I understand some people (orthodox religious people for example) do.
Someone masturbating to an image - a private mental image, or even a private image produced for their personal use with software - seems fine. But publishing a sexual image of someone else clearly does involve the person.
You're jumping from argument about something being "amoral" to the law - why? Thankfully, we don't expect the law to govern all this moral and immoral.
Also, you're calling this "involving someone in a sexual situation" - but said someone is not involved, only his or her image is. By that logic, masturbating to someone's publicly available photos should be made illegal to the exactly same extent.
> involving someone in a sexual situation without their consent
That's rather a broad definition of "involving someone in a sexual situation". I think it's amoral too, but I don't think it's a sexual consent issue. My intuition is that it has more to do with inauthenticity and coopting a person's likeness, their public reputation. You could do the same sort of thing to have people endorse political candidates or products against their will.
> That's rather a broad definition of "involving someone in a sexual situation".
Why? The situation is clearly sexual. The person whose image is used is clearly involved.
> You could do the same sort of thing to have people endorse political candidates or products against their will.
You could make a video of comsone endorsing a political candidate that they don't endorse, label it prominently as a fake, and it woulnd't have much effect - nobody would be misled.
Whereas publishing a video, labelled as fake, of someone engaging in a sex act they didn't actually engage in still arouses people.
Re-reading your post, I just realised by 'sexual consent' you meant rape. I'm not comparing this to rape at all, I mean consent as in consent. Same as the political didn't consent to being videoed or the model didn't consent to be used in the documentary.
I still have the same disagreement with your point. The person is not being involved in a sexual situation. A person is not the same thing as a representation of a person. An image or representation is being involved in a sexual situation, the person is not.
It's an important distinction to make because the language we use affects how we think and argue about the wrong being done and what should happen to punish or prevent it.
I think we agree that it's a shitty thing to do with someone's image, and it will become more shitty as the technology improves to the point at which it's difficult to tell the fake from the real.
> I'm not a huge fan of The Verge and Vox, but this is clearly amoral - I'm not sure any reasonable argument could be made for involving someone in a sexual situation without their consent.
Do you really mean "amoral" or did you intend to use "immoral" instead?
> I'm not a huge fan of The Verge and Vox, but this is clearly amoral
I think you mean “immoral” (which you use in your added material at the end.) “Amoral” is usually used of a person rather than an act, but it means “not concerned with morality” rather than “contrary to morality”. If it were to make any sense applied to an act, it would designate an act with no (positive or negative) moral status in itself, which doesn't seem to be your claim here.
I'm thinking of this in context of handmade drawings. It would be (as far as I know) generally permissible for me to make a lewd, sexualized, perverted drawing with your face, as accurate as I'm able to draw, and look at it with whatever thoughts I might have. However, publicizing this image has quite different norms. Those may be different for different people (for example, distributing caricatures of public figures such as politicians, presidents and other figures of power, e.g. Pope, Mohammad, etc should be allowed even if normal people are not), but they certainly would be much more restrictive than the actual making of such depictions.
Libel would be stating that this is a real recording. If someone publishes a deep fake video saying it's a fake video, it's not much different from a cartoon based on someone, is it?
Saying the video is a fake is not a defense to defamation. The false claim is putting the person's image in the deep fake in the first place. It is a well-settled point of law that a statement after the tortious act doesn't undo the tort; at best it might mitigate damages if the statement provably reduces the harm to the victim.
Only by your logic. You are comparing apples to oranges.
The apple is the original scenario: a deep fake with an accompanying and severable statement, not part of the deep fake, that the image/video is fake. (The severability of the statement matters. If you want to know why, get a Westlaw subscription and spend a few weeks reading defamation case law.)
The orange is the statement about BO. The claim of falsity is intrinsically tied (structurally and contextually) to the false statement accompanying it; they are a single contextual unit. Moreover, the claim of falsity precedes the allegedly defamatory statement to which it is unseverably tied so it is clear at the time of publication that the statement is intended to be false. And let's not even get into the heightened standard that applies defamation claims for public figures...
You'll have to go into more detail about "severable statements" to convince me. Hand-waving towards a reference library doesn't really do it as a citation.
> The claim of falsity is intrinsically tied (structurally and contextually) to the false statement accompanying it; they are a single contextual unit.
I don't see how that can't or couldn't apply to a deepfake: the creator could name the file making clear it was a fake, or put a caption in corner of the video stating so.
The "this statement is false" in my example seems just as separable as that. Someone could edit it out or fail to quote it, etc.
Some of your other comments are about trivial issues: the grammar could be trivially changed to put the clause noting falsity at the end. I also used a public figure as an example, because the name came to mind quickly, but you might as well substitute a normal person's name for Obama's.
Putting the image together is not a public false claim that would trigger tort liability. Publishing it, obviously, might be, but publishing it as a unit with an explicit label of falsity of the image does not make the label of falsity an act after the tort, it makes it an act simultaneously with one required element of the tort, and one which, at least arguably, eliminates another required element, that of falsity of the claim, so thst the required combination of elements never exists.
In the US, it is a well-settled point of law that the defamatory act is the publication of the false image. The statement that the image is fake is not a defense unless it accompanies every publication of the image and identifies the fake aspects of it at every occurrence.
You can certainly argue that the defendant didn't intend to defame someone and included a statement that the image was fake. But as I said, that statement would not eliminate your liability for the tort; it would merely mitigate the damages.
Tort law is complicated and isn't something you can just pick up by browsing the internet for a few minuets. I've handled these types of cases before. Have you?
> The statement that the image is fake is not a defense unless it accompanies every publication
Of course. OTOH, if you build it into the image/video, that's trivial to assure for each publication you are involved in, and subsequent publication by some other third party of some subsequent modified image that removed the statement of falsity is no different than if someone republishes a modified version for your statement that someone is not a child molester which omits the “not”.
> Tort law is complicated
(9_9)
> and isn't something you can just pick up by browsing the internet for a few minuets.
Yeah, I've never really questioned the decision I made to actually buy and study the required texts, etc., when I took Torts, rather than just spending a few minutes studying on the internet, so I really don't need anyone to validate that for me.
(Now, if we were talking about false light, in the jurisdictions which recognize it, rather than defamation, this would be a trickier issue, I think.)
> It is a well-settled point of law that a statement after the tortious act doesn't undo the tort
That's not what I was referring to.
People who are publishing these videos are at the same time publicly say that these are works of fiction and fake. Not sometime later; right at the same time. They publish it in the reddit that has "fake" in the name. They often put "fake" in the title. They sometimes watermark it with a word "fake".
Because you're only looking at the first part of a potential defamation action, the initial publication, and ignoring everything that can happen after that...
By posting it to reddit or online, the deepfaker should have expected that it would be further disseminated (and that is the standard they will be held to, even if they didn't actually expect that). In order for statement of falsity to be a defense to defamtion, they would have to take steps to reasonably ensure that the statement accompanies the further dissemination of the video/image. This means intrinsically tying it to the fake content. A filename wouldn't be enough; they would need to embed it into the video itself, at the points where the images are faked, into order to avoid liability for defamation. Anything less than that and every jury in the country would find them liable for defamation.
Tort law is complicated. The deepfaker of Daisy Ridley is in for a world of hurt if she chooses to pursue a defamation claim. On the other hand, the news sites that posted clips from the deepfake are not.That's an entirely separate discussion...
What they're doing is processing data that is publicly available online. Revenge porn law is something else completely - it's about releasing data to the world.
So, if such a law would be implemented, it would be much closer to DRM laws, which allows data authors and content right owners to dictate how you can process their data, even if they give it to you. In one case, it's copying the data to another format, or may be running a decompiler on it; in another, it's using it in deep learning. Either way, it's processing.
If you want to be super technical about it, processing data and releasing revenge porn are both still a matter of copying bits.
Releasing new bits would be invasion of privacy and defamation.
"Processing" existing bits would be defamation, appropriation, and possibly invasion of privacy based on the resulting images, though the IOP claims would likely be add-on claims to a defamation or appropriation action.
Professor Goldman may be an expert but on IP law but his understanding of invasion of privacy law leaves a bit to be desired...Invasion of privacy doesn't require an actual invasion into a person's private life. It includes publicizing a person in a false light and appropriating their name, both of which would apply to deep fakes.
How then do paparazzi get away with photos of celebrities?
Almost all pictures of celebrities are in or from public areas where there is no right of privacy. (If a celebrity really didn't want to be photographed naked, they wouldn't undress in front of a public-facing window. There are decades of court cases on this point.) The pictures that aren't, i.e., Erin Andrews, resulted in massive court victories for the victims.
The appropriation cases are much rarer, as it generally applies to impersonation cases. It's usually in context of name appropriation, as most image appropriation cases thus far are pursued under different tort theories usually involving commercial harm. (Though since Catfish, image appropriation invasion of privacy cases are becoming more common.)
>Invasion of privacy doesn't require an actual invasion into a person's private life. It includes publicizing a person in a false light [...]
Could you explain that a bit more? I would be very shocked if something as subjective and vague as "publicizing a person in a false light" would be an invasion of privacy worthy of first amendment exemption.
It's basically defamation lite, for when the statement isn't actually false (as in a deep fake), or the falsity is clearly expressed, but publication of the statement still portrays the person in a false context that causes quantifiable harm to their reputation.
Generally, any person who pursues a defamation claim over a deepfake would likely include this claim if they can't meet the burden for defamation.
(Please don't try to pick that apart as I'm only trying to provide a very-high-level-in-a-nutshell general overview.)
This makes absolute sense. Identity theft is a crime in almost all jurisdictions, correct? My identity includes not just my particulars–my biographical and financial details, it includes my speech patterns, my fingerprints, my iris patterns, my 2d and 3d likeness. If any of these things is taken from me without my consent that's theft–my privacy might not even have to be invaded to do so and indeed is a (semi-)orthogonal† matter.
† edit: I'm hedging here because I'm unsure about the exact intersection.
> Professor Goldman may be an expert but on IP law but his understanding of invasion of privacy law leaves a bit to be desired...Invasion of privacy doesn't require an actual invasion into a person's private life. It includes publicizing a person in a false light and appropriating their name, both of which would apply to deep fakes.
It's not clear to me where Goldman says anything that disagrees with that. Are you sure it was something Goldman said that you are disagreeing with, or was it the quote "You can’t sue someone for exposing the intimate details of your life when it’s not your life they’re exposing"?
If the latter, that is not Goldman. That is quoting the Wired article that the submitted article cites.
You asked about ethical/moral issues that arise from image sequences but not images. I can’t answer that but I can say there are legal diffences, for example synchronization rights for synchronizing audio to video is a huge body of law dating back about 100 years. It’s related to, but different from the laws covering performance of recorded music in public spaces (which dates back to about the 1930’s)
Soon, enough people on Facebook will have climbed Everest, yachted with billionaires, and partied with the most fashionable pop stars, that nothing on the internet will be believeable. Elaborate and unique photo/video narratives will be purchased for having one's face and body/body type convincingly inserted. Most of the internet media will then quickly collapse, but some of the fake photos/videos will be pretty funny, and help us laugh away our bitterness for awhile.
Before newspapers, stories traveled from one person to the next. Then newspapers came and everyone said, "they can print anything they want, why will people believe anything in them!".
And yet here were are, for the most part people believe what they see in reputable newspapers.
With the expansion of fake photos and videos, it will just come back to trustworthiness.
Do you trust the source that has provided the image?
...or, they'll be a momentary novelty that Generation Z will view as the 21st century equivalent of sticking your head through a cardboard cutout to pretend you're Dale Earnhardt or Santa Claus or whatever.
Like the issue of morality of copyright infringement, this deepfake may well be immoral/amoral in western (and some other) societies, but that's missing the point.
This deepfake situation, and a similar situation that will occur by synthesizing fake speech in people's own voices, is unstoppable. All the complaining in the world won't stop it, because the barrier to entry will soon be trivial. What is the proposed response? Criminalize running certain kinds of neural nets? Or social media shaming anyone who publishes any fake (that's detectable)?
We all just need to get used to the fact that pretty soon audio and video recordings of people won't be verifiable without careful checking and comparing, and eventually maybe not even then.
Look at the bright side: someone can have a recording of you saying something crude and disrespectful and describing sexual assault, and if you're running for president you won't even have to admit it was you anymore, because soon anyone will be able to fake that kind of thing. Video's more difficult, but that too might happen.
You can even say /actual/ crude and offensive things, and even admit to them, and people will still vote for you. Technology will just make it easier to lie about, if you so choose.
It might be too soon to declare it unstoppable. After the invention of the printing press, people might have thought libel was unstoppable, since anyone could print up and distribute handbills with false accusations. But libel became legally actionable in England in the early 1600s. That didn't reduce the incidence libel to zero, but it got it under control.
> Look at the bright side: someone can have a recording of you saying something crude and disrespectful and describing sexual assault, and if you're running for president you won't even have to admit it was you anymore, because soon anyone will be able to fake that kind of thing.
Honestly this scenario is so terrifying to me that I almost hate to even discuss it. What happens when people can make convincing fakes like that of religious figures and weaponize it to incite violence or install authoritarian governments?
How much more powerful and devastating would calls for genocide be, if driven by deepfake videos? Especially in parts of the world where people wouldn't even be a little bit skeptical of something outrageous that they saw with their own eyes.
Just look at the current political climate in the US. How much more polarized and volatile would things be if someone could fake videos showing politicians abusing children or planning a violent 'government takeover'.
If/when this tech gets good enough, it will absolutely be disruptive to civilization.
It will cause everyone to suspect/question anything they have not witnessed personally. It is a significant industry threatening issue for journalism, that's for sure.
>It will cause everyone to suspect/question anything they have not witnessed personally.
No, it really won't, unless it involves them personally. If a celebrity or politician denies it was them in "that video," most people will believe whatever conforms to their biases about that person.
>What happens when people can make convincing fakes like that of religious figures and weaponize it to incite violence or install authoritarian governments?
You do realize it was already possible to do this? What's new here is not the capability to create a convincing fake video, but the deep learning/AI aspect of it.
>How much more powerful and devastating would calls for genocide be, if driven by deepfake videos? Especially in parts of the world where people wouldn't even be a little bit skeptical of something outrageous that they saw with their own eyes.
>Just look at the current political climate in the US. How much more polarized and volatile would things be if someone could fake videos showing politicians abusing children or planning a violent 'government takeover'.
Probably not much. There aren't a lot of people out there who would commit mass murder or political violence if only there were convincing documentary evidence, but who wouldn't otherwise.
The article states that removing the content would be a violation of the right to free speech. Actually though that right does not apply to obscene imagery. So there is no problem with blocking or removing the images.
"Consent" is starting to become a really loaded word. It doesn't seem journalistically honest to start a conversation and use non-neutral language in the headline to frame the tone of the discussion.
It seems like the right word in this context. It sounds like you have an issue with the word for some reason, but I can't work out what the issue is, much less how it shows a lack of journalistic integrity.
It is definitely not a grammatically incorrect use of the word. I have nothing against it per se. But the word is almost exclusively associated to negative emotional content, and that fact primes the reader to feel a certain way about the issue before they have even read the piece. See Russell conjugation: https://www.edge.org/response-detail/27181
A more neutral candidate could be just: "Is It Legal to Swap Someone’s Face into Porn?" (It delivers the same information since it wouldn't be a legal question if all participants agreed to the act.)
I kinda see where he's coming from. There's a lot of negative charge around the phrase "without their consent," to the point where it primes and automatic "no" response that might cloud a discussion of the actual issues.
There a lot of stuff that people should rightly be able to do without an affected person's consent (such as leaving a negative review of their work), but having framing that centers on "consent" obscures that.
Am I the only one that may see a positive side to all this? For example, what if I use this technology to swap my face and/or my partner's face into other people's videos and then we can watch these? I think it might be pretty hot, much more so than watching some unknown person's faces.
I am the author of the global "Automated Actor Replacement In Filmed Media" patent. I wrote the patent in 2002, which was globally awarded around the 2006-2008 time frame. At that time, I was heavily trying to raise financing for a Personalized Advertising startup - replace TV commercial actors with your image and that of family and friends. The whole technology and production pipeline worked, but I needed financing to make a real company. However, no matter how I structured my company, there were no financiers willing to invest without the option of, and active desire, to produce porn first. Every single possible investment group, from individual angels to established top-tier VC all insisted on a Porn First strategy, even though I insisted this technology should never be applied to such a purpose - it is a Pandora's Box that would trigger society issues I did not want to be the cause. Eventually, I pivoted away from the advertising concept, into custom game characters, but that's a different story. Every single serious investor insisted and ultimately walked when I refused to use the technology to produce porn. This includes almost every major film studio and recording label too.
That seems at odds with the concerns an HNer brought up the other day about their adult business and moving to SF. Most people warned them that VC is still reticent about porn. I guess it's whatever they would perceive would make them money.
As to your advertising idea, that's interesting but also brings up issues don't you think? Especially now with better facial recognition technology. For example, walking down a street, a camera scans your face, pull up a bunch of data on you (say you've been looking for a kayak lately), then in a nearby billboard or hologram display area, they show you images of yourself and your family kayaking down the Colorado or in an ocean.
What's interesting in movies/tv is that as the technology matures, we may never see some of our stars actually age or even what they truly look like. A lot of time and money is already spent on beauty work so it's not too big a leap to see this being mixed in with that.
VC are not reticent about porn, only about not making a killing at it if they go into porn. If they can capture any serious revenue flows, that is all they care about. Any discussion otherwise is purely safety speech.
Interesting you should mention facial recognition, because that is what I turned the technology into - or reverted it back into. My 'digital double' creation for automated actor replacement involves neural net trained 3D reconstruction of faces. It originally came from pose correction for facial recognition. Being an animation/VFX, guy I licensed the 3D reconstruction tech from an FR company.
After my startup efforts failed, the FR company hired me because I'd done the largest scale use of their technology at the time. Now I create mesh network appliances of their tech, combined with my production tech from my feature animation days, to create apps for dynamic FR security perimeters. The interesting thing is, the frame processing I do could easily be fed into a 'deep fake' system to produce crazy fake media pretty much automatically. We track faces frame to frame and project a 3D polygon mesh matching their facial expression. Need more?
As much as I read about new tech stuff, I had no idea how far things were along until all the deepfake porn headlines hit the news the past few weeks. I guess amidst all the hand-wringing over Carrie Fisher and Grand Moff Tarkin's "looks" in Rogue One it never really struck me that that stuff had 'arrived'.
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.
> 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.)
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)
> 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.)
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.
how would we go about making a proof-of-unaltered videos? shall someone run an ICO for a start-up thickly dressed in a cloud of tags related to blockchain, web of trust, verifyable frames... Seriously, can any degree of trust be achieved short of hashing and signing every single frame by a trusted video sensor?
It was possible to do face swap images in photoshop for a long time and people learned not to trust random nude celebrity images, I believe it's the same thing now with video.
There are some fun grey areas where you have someone doing porn who actually looks like a celebrity.
The good news is that you should be able to easily detect a face swap video, by comparing the face against public images that were taken of the celebrity and comparing the rest of the video with porn videos (like Youtube's ContentID).
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[ 2.9 ms ] story [ 141 ms ] threadMy question would if there would be a diff btwn public person (aka famous, known) and run of the mill hoi polloi. Famous personalities in some circumstances have less recourse in terms of privacy.
Should the (many!) Elvis impersonators need a licence from his estate?
Impersonating others isn't a new issue, we already have a quite settled body of law about that and centuries of weird edge cases. I don't see a radical difference brought in by technology here. IMHO the treatment of making face-swapped porn videos (or distributing them, which is a quite different case) should be the same as the currently established treatment of painting (or distributing) a realistic painting of someone you know in a pornographic pose - whatever that treatment is.
In any case, this is more narrow in that its focus is on pornographic representations of regular people (a la revenge porn).
Right of publicity / personality rights are actually a fairly actively evolving area of law (and one with considerable variation between jurisdictions, even with the US), not an area of settled consensus.
Actually, the way the law currently works...they might (to avoid one or more tort cases for invasion of privacy, defamation, and/or publicity rights). Studios will rename characters in biopics if they can't secure rights to the person the character was based on. Like all things in the law, it is a matter of context. A biopic or other media "based on a true story" may require the permission of the people portrayed in it. A satire generally would not...The law is complicated like that.
Should the (many!) Elvis impersonators need a license from his estate?
Elvis is dead...The publicity rights of the dead are generally minimal and the invasion of privacy rights nonexistent...Also, the Elvis estate is generally okay with impersonators because for the most part they don't harm (i.e., defame) his image. They have gone after impersonators who they believed misappropriated Elvis' image for defamatory purposes.
IMHO the treatment of making face-swapped porn videos (or distributing them, which is a quite different case) should be the same as the currently established treatment of painting (or distributing) a realistic painting of someone you know in a pornographic pose - whatever that treatment is.
Under the current law, that is several torts: Invasion of privacy, publicity rights, and defamation...
What circumstances would require a film production to ask permission of a real person before an actor could portray him? E.g. The film "The Social Network" didn't ask Mark Z for permission to portray him in an unflattering way:
https://movies.stackexchange.com/questions/2108/how-can-a-st...
Invasion of privacy did not apply because he was a public figure and held to the higher standard for IOP claims. Pretty much everything in the movie has already been revealed before, so there isn't anything private that was revealed in the movie itself.
Mark Z could have had a case for publicity rights. The only problem is...what damages did he suffer? It's likely that his legal team realized that they could only ever win a relative pittance in damages but not block the distribution of the movie, and suing would just trigger the Streisand effect, so they just did nothing. (His damages would likely have been based on the amounts paid to other celebrities for their life stories...usually in the range of $250k to $5 million, a pittance for a billionaire.)
I would certainly bloody hope they need permission. You have the usual caveats regarding the public interest for things, but I mean, one could argue a director should at least have one face to face conversation with someone they're including in a movie.
> Should the (many!) Elvis impersonators need a licence from his estate?
I think it's super creepy how widespread and how effectively public domain Elvis' image, act, and etc. is. He's been impersonated, lampooned, parodied, etc. so many times over. I mean you can't deny his cultural impact, but I don't know. I find it unsettling.
> Impersonating others isn't a new issue, we already have a quite settled body of law about that and centuries of weird edge cases. I don't see a radical difference brought in by technology here. IMHO the treatment of making face-swapped porn videos (or distributing them, which is a quite different case) should be the same as the currently established treatment of painting (or distributing) a realistic painting of someone you know in a pornographic pose - whatever that treatment is.
More to the point: I'm not talking about impersonation, I'm talking about the use of one's likeness for personal, commercial, or illicit purpose without that individual's knowledge or consent, and frankly I find HN's overall response to this a little alarming. It seems (though this admittedly small and totally not even remotely scientific sample) that the tech-inclined don't seem to care much for privacy rights when it stops them from doing objectively cool things.
While the details may need tweaked, many jurisdictions already have “something akin to copyright to cover our own faces and identity in general”, under the name “personality rights” or “right of publicity”.
https://en.m.wikipedia.org/wiki/Personality_rights
More often, “in our increasingly non-local economic systems”, laws (especially civil laws, where the complaining party chooses whether and where to pursue violations) that vary by area are effectively enforced at the level of the most favorable (to the complaining party) regime available, rather than being unenforced.
The reason social networks and other apps can get away with it is because you agree to let them use images of you posted to the network for commercial purposes as part of the Terms of Service you agree to when you use the service. In the absence of that provision in a ToS, you would have a very valid claim for appropriation of image if a social network used a picture of you.
These TOSs do not extend to other pictures of you. Thus, for example, Facebook couldn't run a commercial with a picture of you that was posted to Twitter but not Facebook.
I'd expect the law to catch up soon, and that to happen after the issue is made more common once Reddit's non-consensual deepfakes goes more viral than it already has.
Edit: replying to the flagged response below, which I disagree with but which I think deserves a reply:
By immoral, I mean hurting other people without consent. I do not believe any activity that doesn't hurt other people is immoral, though I understand some people (orthodox religious people for example) do.
Someone masturbating to an image - a private mental image, or even a private image produced for their personal use with software - seems fine. But publishing a sexual image of someone else clearly does involve the person.
Also, you're calling this "involving someone in a sexual situation" - but said someone is not involved, only his or her image is. By that logic, masturbating to someone's publicly available photos should be made illegal to the exactly same extent.
That's rather a broad definition of "involving someone in a sexual situation". I think it's amoral too, but I don't think it's a sexual consent issue. My intuition is that it has more to do with inauthenticity and coopting a person's likeness, their public reputation. You could do the same sort of thing to have people endorse political candidates or products against their will.
Why? The situation is clearly sexual. The person whose image is used is clearly involved.
> You could do the same sort of thing to have people endorse political candidates or products against their will.
You could make a video of comsone endorsing a political candidate that they don't endorse, label it prominently as a fake, and it woulnd't have much effect - nobody would be misled.
Whereas publishing a video, labelled as fake, of someone engaging in a sex act they didn't actually engage in still arouses people.
It's an important distinction to make because the language we use affects how we think and argue about the wrong being done and what should happen to punish or prevent it.
I think we agree that it's a shitty thing to do with someone's image, and it will become more shitty as the technology improves to the point at which it's difficult to tell the fake from the real.
Do you really mean "amoral" or did you intend to use "immoral" instead?
I think you mean “immoral” (which you use in your added material at the end.) “Amoral” is usually used of a person rather than an act, but it means “not concerned with morality” rather than “contrary to morality”. If it were to make any sense applied to an act, it would designate an act with no (positive or negative) moral status in itself, which doesn't seem to be your claim here.
I'm thinking of this in context of handmade drawings. It would be (as far as I know) generally permissible for me to make a lewd, sexualized, perverted drawing with your face, as accurate as I'm able to draw, and look at it with whatever thoughts I might have. However, publicizing this image has quite different norms. Those may be different for different people (for example, distributing caricatures of public figures such as politicians, presidents and other figures of power, e.g. Pope, Mohammad, etc should be allowed even if normal people are not), but they certainly would be much more restrictive than the actual making of such depictions.
What if the statement or image was labeled as a fake from its inception, not just "after the fact"?
By your logic, this statement is defamatory/libel:
"This statement is false: Barack Obama killed a man just to watch him die and also cheats at cards."
The apple is the original scenario: a deep fake with an accompanying and severable statement, not part of the deep fake, that the image/video is fake. (The severability of the statement matters. If you want to know why, get a Westlaw subscription and spend a few weeks reading defamation case law.)
The orange is the statement about BO. The claim of falsity is intrinsically tied (structurally and contextually) to the false statement accompanying it; they are a single contextual unit. Moreover, the claim of falsity precedes the allegedly defamatory statement to which it is unseverably tied so it is clear at the time of publication that the statement is intended to be false. And let's not even get into the heightened standard that applies defamation claims for public figures...
> The claim of falsity is intrinsically tied (structurally and contextually) to the false statement accompanying it; they are a single contextual unit.
I don't see how that can't or couldn't apply to a deepfake: the creator could name the file making clear it was a fake, or put a caption in corner of the video stating so.
The "this statement is false" in my example seems just as separable as that. Someone could edit it out or fail to quote it, etc.
Some of your other comments are about trivial issues: the grammar could be trivially changed to put the clause noting falsity at the end. I also used a public figure as an example, because the name came to mind quickly, but you might as well substitute a normal person's name for Obama's.
You can certainly argue that the defendant didn't intend to defame someone and included a statement that the image was fake. But as I said, that statement would not eliminate your liability for the tort; it would merely mitigate the damages.
Tort law is complicated and isn't something you can just pick up by browsing the internet for a few minuets. I've handled these types of cases before. Have you?
Of course. OTOH, if you build it into the image/video, that's trivial to assure for each publication you are involved in, and subsequent publication by some other third party of some subsequent modified image that removed the statement of falsity is no different than if someone republishes a modified version for your statement that someone is not a child molester which omits the “not”.
> Tort law is complicated
(9_9)
> and isn't something you can just pick up by browsing the internet for a few minuets.
Yeah, I've never really questioned the decision I made to actually buy and study the required texts, etc., when I took Torts, rather than just spending a few minutes studying on the internet, so I really don't need anyone to validate that for me.
(Now, if we were talking about false light, in the jurisdictions which recognize it, rather than defamation, this would be a trickier issue, I think.)
That's not what I was referring to.
People who are publishing these videos are at the same time publicly say that these are works of fiction and fake. Not sometime later; right at the same time. They publish it in the reddit that has "fake" in the name. They often put "fake" in the title. They sometimes watermark it with a word "fake".
How can this be defamation or libel?
By posting it to reddit or online, the deepfaker should have expected that it would be further disseminated (and that is the standard they will be held to, even if they didn't actually expect that). In order for statement of falsity to be a defense to defamtion, they would have to take steps to reasonably ensure that the statement accompanies the further dissemination of the video/image. This means intrinsically tying it to the fake content. A filename wouldn't be enough; they would need to embed it into the video itself, at the points where the images are faked, into order to avoid liability for defamation. Anything less than that and every jury in the country would find them liable for defamation.
Tort law is complicated. The deepfaker of Daisy Ridley is in for a world of hurt if she chooses to pursue a defamation claim. On the other hand, the news sites that posted clips from the deepfake are not.That's an entirely separate discussion...
Would a good watermark suffice, for example?
So, if such a law would be implemented, it would be much closer to DRM laws, which allows data authors and content right owners to dictate how you can process their data, even if they give it to you. In one case, it's copying the data to another format, or may be running a decompiler on it; in another, it's using it in deep learning. Either way, it's processing.
Releasing new bits would be invasion of privacy and defamation.
"Processing" existing bits would be defamation, appropriation, and possibly invasion of privacy based on the resulting images, though the IOP claims would likely be add-on claims to a defamation or appropriation action.
Either way, it's a tort.
How then do paparazzi get away with photos of celebrities?
Almost all pictures of celebrities are in or from public areas where there is no right of privacy. (If a celebrity really didn't want to be photographed naked, they wouldn't undress in front of a public-facing window. There are decades of court cases on this point.) The pictures that aren't, i.e., Erin Andrews, resulted in massive court victories for the victims.
The appropriation cases are much rarer, as it generally applies to impersonation cases. It's usually in context of name appropriation, as most image appropriation cases thus far are pursued under different tort theories usually involving commercial harm. (Though since Catfish, image appropriation invasion of privacy cases are becoming more common.)
Could you explain that a bit more? I would be very shocked if something as subjective and vague as "publicizing a person in a false light" would be an invasion of privacy worthy of first amendment exemption.
Generally, any person who pursues a defamation claim over a deepfake would likely include this claim if they can't meet the burden for defamation.
(Please don't try to pick that apart as I'm only trying to provide a very-high-level-in-a-nutshell general overview.)
† edit: I'm hedging here because I'm unsure about the exact intersection.
It's not clear to me where Goldman says anything that disagrees with that. Are you sure it was something Goldman said that you are disagreeing with, or was it the quote "You can’t sue someone for exposing the intimate details of your life when it’s not your life they’re exposing"?
If the latter, that is not Goldman. That is quoting the Wired article that the submitted article cites.
And yet here were are, for the most part people believe what they see in reputable newspapers.
With the expansion of fake photos and videos, it will just come back to trustworthiness.
Do you trust the source that has provided the image?
https://img.etsystatic.com/il/c435d0/942014524/il_570xN.9420...
This deepfake situation, and a similar situation that will occur by synthesizing fake speech in people's own voices, is unstoppable. All the complaining in the world won't stop it, because the barrier to entry will soon be trivial. What is the proposed response? Criminalize running certain kinds of neural nets? Or social media shaming anyone who publishes any fake (that's detectable)?
We all just need to get used to the fact that pretty soon audio and video recordings of people won't be verifiable without careful checking and comparing, and eventually maybe not even then.
Look at the bright side: someone can have a recording of you saying something crude and disrespectful and describing sexual assault, and if you're running for president you won't even have to admit it was you anymore, because soon anyone will be able to fake that kind of thing. Video's more difficult, but that too might happen.
Honestly this scenario is so terrifying to me that I almost hate to even discuss it. What happens when people can make convincing fakes like that of religious figures and weaponize it to incite violence or install authoritarian governments?
How much more powerful and devastating would calls for genocide be, if driven by deepfake videos? Especially in parts of the world where people wouldn't even be a little bit skeptical of something outrageous that they saw with their own eyes.
Just look at the current political climate in the US. How much more polarized and volatile would things be if someone could fake videos showing politicians abusing children or planning a violent 'government takeover'.
If/when this tech gets good enough, it will absolutely be disruptive to civilization.
No, it really won't, unless it involves them personally. If a celebrity or politician denies it was them in "that video," most people will believe whatever conforms to their biases about that person.
You do realize it was already possible to do this? What's new here is not the capability to create a convincing fake video, but the deep learning/AI aspect of it.
>How much more powerful and devastating would calls for genocide be, if driven by deepfake videos? Especially in parts of the world where people wouldn't even be a little bit skeptical of something outrageous that they saw with their own eyes.
>Just look at the current political climate in the US. How much more polarized and volatile would things be if someone could fake videos showing politicians abusing children or planning a violent 'government takeover'.
Probably not much. There aren't a lot of people out there who would commit mass murder or political violence if only there were convincing documentary evidence, but who wouldn't otherwise.
There a lot of stuff that people should rightly be able to do without an affected person's consent (such as leaving a negative review of their work), but having framing that centers on "consent" obscures that.
As to your advertising idea, that's interesting but also brings up issues don't you think? Especially now with better facial recognition technology. For example, walking down a street, a camera scans your face, pull up a bunch of data on you (say you've been looking for a kayak lately), then in a nearby billboard or hologram display area, they show you images of yourself and your family kayaking down the Colorado or in an ocean.
What's interesting in movies/tv is that as the technology matures, we may never see some of our stars actually age or even what they truly look like. A lot of time and money is already spent on beauty work so it's not too big a leap to see this being mixed in with that.
Interesting you should mention facial recognition, because that is what I turned the technology into - or reverted it back into. My 'digital double' creation for automated actor replacement involves neural net trained 3D reconstruction of faces. It originally came from pose correction for facial recognition. Being an animation/VFX, guy I licensed the 3D reconstruction tech from an FR company.
After my startup efforts failed, the FR company hired me because I'd done the largest scale use of their technology at the time. Now I create mesh network appliances of their tech, combined with my production tech from my feature animation days, to create apps for dynamic FR security perimeters. The interesting thing is, the frame processing I do could easily be fed into a 'deep fake' system to produce crazy fake media pretty much automatically. We track faces frame to frame and project a 3D polygon mesh matching their facial expression. Need more?
As much as I read about new tech stuff, I had no idea how far things were along until all the deepfake porn headlines hit the news the past few weeks. I guess amidst all the hand-wringing over Carrie Fisher and Grand Moff Tarkin's "looks" in Rogue One it never really struck me that that stuff had 'arrived'.
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.
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.)
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.
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.
And whoever is suggesting otherwise should be considered suspect.
There are some fun grey areas where you have someone doing porn who actually looks like a celebrity.
The good news is that you should be able to easily detect a face swap video, by comparing the face against public images that were taken of the celebrity and comparing the rest of the video with porn videos (like Youtube's ContentID).