Vondran Legal® Deep Fake Litigation Law Firm - Is someone impersonating you or tarnishing your reputation? Misappropriating your name, image, voice or likeness? Interfering with elections? Call us at (877) 276-5084.

Introduction

As technology advances, so do the ways in which we can be impersonated.Deep fake technology has made it possible to create eerily realistic videos and images that show people saying and doing things they never actually said or did. This has led to a number of high-profile cases in which public figures have been impersonated in embarrassing or damaging ways. While deep fake impersonation is not currently illegal, it raises a number of legal concerns. For example, right of publicity laws protect individuals from having their likeness used without permission. False light laws protect against portrayals that are inaccurate or misleading. And damage to reputation is a well-established cause of action in many jurisdictions. As deep fake technology becomes more sophisticated and widespread, lawmakers will need to grapple with the difficult question of how to balance the right to free speech with the right to privacy and protection from harm.

California passes two new laws directed at Deep Fake AI content

California AB 730 - Deepfakes

This California deep fake law prohibits the use of deepfakes to influence political campaigns. That new law will sunset on January 1, 2027, and will no longer be in effect after that time.

Per the introduction to the law: Elections: deceptive audio or visual media.

Existing law prohibits a person or specified entity from, with actual malice, producing, distributing, publishing, or broadcasting campaign material, as defined, that contains

(1) a picture or photograph of a person or persons into which the image of a candidate for public office is superimposed

(2) a picture or photograph of a candidate for public office into which the image of another person or persons is superimposed, unless the campaign material contains a specified disclosure.

This bill would, until January 1, 2023, instead prohibit a person, committee, or other entity, within 60 days of an election at which a candidate for elective office will appear on the ballot, from distributing with actual malice materially deceptive audio or visual media of the candidate with the intent to injure the candidate's reputation or to deceive a voter into voting for or against the candidate, unless the media includes a disclosure stating that the media has been manipulated.

The bill would restore the existing provisions described above on January 1, 2023. The bill would define “materially deceptive audio or visual media” to mean an image or audio or video recording of a candidate's appearance, speech, or conduct that has been intentionally manipulated in a manner such that the image or audio or video recording would falsely appear to a reasonable person to be authentic and would cause a reasonable person to have a fundamentally different understanding or impression of the expressive content of the image or audio or video recording than that person would have if the person were hearing or seeing the unaltered, original version of the image or audio or video recording.

The bill would authorize, until January 1, 2023, a candidate for elective office whose voice or likeness appears in audio or visual media distributed in violation of this section to seek injunctive or other equitable relief prohibiting the distribution of the deceptive audio or visual media.

It would also authorize a candidate whose voice or likeness appears in the deceptive audio or visual media to bring an action for general or special damages against the person, committee, or other entity that distributed the media, and would authorize the court to award a prevailing party reasonable attorney's fees and costs.

The bill would provide exemptions (from liability) for all of the following:

Here are the 4 exemptions:

(1) a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, when it is paid to broadcast materially deceptive audio or visual media,

(2) materially deceptive audio or visual media that constitutes satire or parody,

(3) a radio or television broadcasting station, including a cable or satellite television operator, programmer, or producer, that broadcasts materially deceptive audio or visual media as part of a bona fide newscast, news interview, news documentary, or on-the-spot coverage of bona fide news events, if the broadcast clearly acknowledges through content or a disclosure that there are questions about the authenticity of the materially deceptive audio or visual media,

and

(4) an internet website, or a regularly published newspaper, magazine, or other periodical of general circulation, including an internet or electronic publication, that routinely carries news and commentary of general interest, and that publishes the materially deceptive audio or visual media, if the publication clearly states that the materially deceptive audio or visual media does not accurately represent the speech or conduct of the candidate.

California AB 602 - Digital Porn

This is another California law to address Deepfake Pornography:

AB 602, Berman. Depiction of an individual using digital or electronic technology: sexually explicit material; cause of action.

Existing law creates a private right of action against a person who intentionally distributes a photograph or recorded image of another that exposes the intimate body parts of that person or of a person engaged in a sexual act without the person's consent, if specified conditions are met.

This bill would provide that a depicted individual, as defined, has a cause of action against a person who either:

(1) creates and intentionally discloses sexually explicit material if the person knows or reasonably should have known the depicted individual did not consent to its creation or disclosure

(2) who intentionally discloses sexually explicit material that the person did not create if the person knows the depicted individual did not consent to its creation.

EXEPTIONS: The bill would specify exceptions to those provisions, including if the material is a matter of legitimate public concern or a work of political or newsworthy value.

The bill would authorize a prevailing plaintiff who suffers harm to seek injunctive relief and recover reasonable attorney's fees and costs as well as specified monetary damages, including statutory and punitive damages.

There is no sunset provision for this law, meaning it is currently in effect.

Vondran Legal® Deep Fake Dispute Services

We handle IP, Internet, and technology-related legal disputes, including demand letters, mediation, arbitration, and state and federal court litigation involving right of publicity, copyright, trademark, and revenge porn, and can assist with cases such as:

1. Fake imposter account takedowns (eg Facebook or Instagram takedowns that violate their terms of service)

2. Deep fake pornography

3. Right of publicity violations

4. False light in the public eye

5. Invasion of privacy

6. California Revenge Porn

7. First Amendment defense

Congress proposes the NO FAKES ACT to punish unauthorized Deep Fakes

Current Text of the Proposed Law

You can see a text version of the proposed legislation here.

This Act may be cited as follows:

“Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2023” or the “NO FAKES Act of 2023”

Click here to hear the Podcast version of the law by Attorney Steve®

What is Prohibited?

Any person that, in a manner affecting interstate or foreign commerce (or using any means or facility of interstate or foreign commerce), engages in an activity described in paragraph (2) shall be liable in a civil action brought under subsection (d) for any damages sustained by the individual or rights holder injured as a result of that activity.

(2) ACTIVITIES DESCRIBED.—An activity described in this paragraph is either of the following:

(A) The production of a digital replica without consent of the applicable individual or rights holder.

(B) The publication, distribution, or transmission of, or otherwise making available to the public, an unauthorized digital replica, if the person engaging in that activity has knowledge that the digital replica was not authorized by the applicable individual or rights holder.

POTENTIAL REMEDIES FOR A PLAINTIFF REMEDIES

In any civil action brought under this subsection—

(A) the person committing a violation of subsection (c) shall be liable to the injured party in an amount equal to the greater of—

(i) $5,000 per violation;

(ii) any damages suffered by the injured party as a result of the violation;

(B) in the case of a willful violation where the injured party has proven that the defendant acted with malice, fraud, or oppression, the court may award to the injured party punitive damages;

and

Click here to learn more about Punitive Damages

STATUTE OF LIMITATIONS

LIMITATIONS PERIOD.—A civil action may not be brought under this subsection unless the action is commenced not later than 3 years after the date on which the party seeking to bring the civil action discovered, or with due diligence should have discovered, the applicable violation.

DEFENSES NOT PERMITTED.—It shall not be a defense in a civil action brought under this subsection that the defendant—

(A) displayed or otherwise communicated to the public a disclaimer stating that the applicable digital replica was unauthorized;

(B) did not participate in the creation, development, distribution, or dissemination of the applicable digital replica.

Who are eligible Plaintiffs?

ELIGIBLE PLAINTIFFS.—A civil action for a violation of subsection (c) may be brought by—

(A) an individual, the image, voice, or visual likeness of whom is used in the digital replica that is the subject of the action;

(B) any other person that owns or controls, including by virtue of an exclusive license, the rights to the image, voice, or visual likeness of the individual described in subparagraph (A);

(C) in the case of a digital replica involving a sound recording artist, any person that has entered into a contract for the exclusive personal services of the sound recording artist as a sound recording artist.

What types of AI replicas are EXCLUDED from liability?

EXCLUSIONS.—It shall not be a violation of paragraph (1) if, regardless of the degree of [dramatization]—

(A) the applicable digital replica is used as part of a news, public affairs, or sports broadcast or report;

(B) the applicable digital replica—

(i) is used part of a documentary, docudrama, or historical or biographical work;

and

(ii) uses a representation of the applicable individual as that individual;

(C) the applicable digital replica is used for purposes of comment, criticism, scholarship, satire, or parody; [Attorney Steve® note: These are typically protected by Federal Fair Use Laws]

(D) the applicable digital replica is used in an advertisement or commercial announcement for a purpose described in subparagraph (A), (B), or (C);

(E) the use of the applicable digital replica is de minimis or incidental.

To learn more about the existing California Right of Publicity Law

Contact a Deep Fake Right of Publicity Litigation Attorney [California & Arizona].

If you are dealing with a deep fake issue (fake ads, false endorsements, trademarks, right of publicity, celebrity endorsements, or copyright infringement), call us at (877) 276-5084. We are a civil litigation firm based in California and Arizona focused on entertainment, technology, and intellectual property infringement issues. You can also fill out our contact form, and we will contact you.

Deep Fake Litigation