Michael D. Murray (University of Kentucky, J. David Rosenberg College of Law) has posted Deceptive Exploitation: Deepfakes, the Rights of Publicity and Privacy, and Trademark Law (IDEA®: THE LAW REVIEW OF THE FRANKLIN PIERCE CENTER FOR INTELLECTUAL PROPERTY [VOL. 65]) on SSRN. Here is the abstract:
To be published in Volume 65 of IDEA: Law Review of the Franklin Pierce Center for Intellectual Property (forthcoming, 2025): This article addresses the intersection of deepfake technology and the law within three key legal frameworks: the right of publicity, the right of privacy, and trademark law. The development of visual generative artificial intelligence (GAI) tools, particularly generative adversarial networks and diffusion-based transformer models, has revolutionized and democratized how visual and audio content is produced. One result of this democratization is that deepfakes—artificially generated audio, video, and images that convincingly mimic real people—are proliferating. The ubiquitous nature of the technology presents challenges in keeping up with deepfakes that are used to exploit a person’s name, image, likeness, or persona without their consent. But the existing triad of publicity, privacy, and trademark law is adaptable and capable of addressing the evolving legal issues posed by this emerging technology.
Publicity law, as applied to deepfakes, offers protections against unauthorized commercial exploitation, particularly when deepfakes are used in advertising or endorsements. Key precedents, such as Midler v. Ford and Carson v. Here’s Johnny Portable Toilets, are reviewed, illustrating how courts have recognized the right to prevent the commercial use of an individual’s identity. This framework is well-suited to combat the rise of deepfake technology in commercial contexts where AI-generated content exploits a person’s identity for monetary gain.
Privacy law is particularly relevant in cases where deepfakes invade an individual’s private life or cause emotional harm. Deepfakes may trigger claims of invasion of privacy, public disclosure of private facts, and false light misrepresentation. Deepfakes that portray individuals in damaging or compromising ways without consent, such as in revenge porn or defamation scenarios, fall squarely within privacy law protections. The adaptability of this legal framework is highlighted, especially in non-commercial contexts where the right of publicity may not apply. However, limitations imposed by the First Amendment are also discussed, which may shield some deepfakes if they are used for expressive purposes, such as artistic expression, parody, or satire.
Trademark law false endorsement and false designation of origin claims under the Lanham Act aim to prevent consumer confusion regarding the affiliation, sponsorship, or approval of goods or services. Deepfake technology is increasingly used to create false endorsements, where AI-generated images or videos depict public figures endorsing products they have no connection to. Trademark law provides robust protections against such misrepresentations, safeguarding both consumers and the individual whose likeness is exploited. Notable examples of false endorsement claims, such as Hoffman v. Capital Cities/ABC, Inc., and Abdul-Jabbar v. General Motors Corp., are discussed, illustrating how trademark law can combat the deceptive use of deepfakes in commercial contexts.
Throughout the article, the role of the First Amendment is critically examined. While commercial speech, such as advertising, enjoys less protection, deepfakes used for expressive purposes—such as artistic expression, commentary, parody, or criticism—may invoke First Amendment defenses. Courts balance these constitutional protections against privacy, publicity, and trademark claims.
Ultimately, the article concludes that, although deepfakes represent a novel challenge, the existing triad of publicity, privacy, and trademark law is adaptable and capable of addressing the evolving legal issues posed by this emerging technology.
Recommended.
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{URL}https://lsolum.typepad.com/legaltheory/2024/12/murray-on-deepfakes-publcity-privacy-and-trademark.html{/URL}
{Author}Lawrence Solum{/Author}
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{Source}Implications{/Source}
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