Vondran Legal® - Social Media, IP & Internet Law - Has someone illegally created a nude of you and posted it online? Have a legal issue? Call us at (877) 276-5084.
Introduction
With the explosion of all the wonderful things artificial intelligence ("AI") is good for, there is also a darker side. New technologies allow anyone to take an image of a person, run them through an online AI tool, and basically take their clothes off. This might be done for personal fun and amusement, or for parody of a public figure. Worse yet, it can be used by ex-lovers to engage in revenge porn. Are these types of programs legal to use? Can you get in trouble by downloading and posting AI image nudes on the internet on various platforms and chat rooms? In a word, be very careful what you are doing, as you could find yourself in some legal trouble.
Are AI tools like Nudify legal?
At this point, there is no indication that there is anything illegal about using these types of platforms. To me, the question is what you do with the images you create. Here is an example from a social media post that shows the types of questions and concerns that can be raised by using software tools similar to Nudify.
As you can see, a good question is raised, what if you creating and distributing images online and the victim is under 18 years old? This could potentially create a gigantic legal problem.
What to do if someone posts your images or a video online without your consent?
Here are a few things to keep in mind if you are a victim of internet deepfakes
- Determine the number of occurrences of the images or media on the internet. See if you can locate other places where the images or videos may have been posted.
- Take dated screenshots to preserve the evidence
- Contact an Internet and IP attorney to discuss potential liability and recourse and a strategy to remove the content, if possible (See DMCA takedown process below)
- Discuss whether there are any potential defenses the other party may raise (ex. parody of a public figure, consent, license or other potential defenses)
- Contact the individual responsible for the content's publication and request its removal (if advisable by your IP deepfake firm)
- Evaluate potential grounds and parties who may be liable in a lawsuit.
The DMCA Takedown Angle
If you are a victim of image altering, you may have legal recourse against the perpetrator. One way to get infringing images of you, used without your consent or permission, and without fair use rights is to send a DMCA takedown demand to the online platform where the offending image is posted. This will trigger a counter-notification, right. Learn more about this in this video from the Attorney Steve® Litigation Whiteboard® series.
California Penal Code
(j) (1) A person who looks through a hole or opening, into, or otherwise views, by means of any instrumentality, including, but not limited to, a periscope, telescope, binoculars, camera, motion picture camera, camcorder, mobile phone, electronic device, or unmanned aircraft system, the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which the occupant has a reasonable expectation of privacy, with the intent to invade the privacy of a person or persons inside. This subdivision does not apply to those areas of a private business used to count currency or other negotiable instruments.
(2) A person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another identifiable person under or through the clothing being worn by that other person, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, with the intent to arouse, appeal to, or gratify the lust, passions, or sexual desires of that person and invade the privacy of that other person, under circumstances in which the other person has a reasonable expectation of privacy. For the purposes of this paragraph, “identifiable” means capable of identification, or capable of being recognized, meaning that someone, including the victim, could identify or recognize the victim. It does not require the victim's identity to actually be established.
(3) (A) A person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person. For the purposes of this paragraph, “identifiable” means capable of identification, or capable of being recognized, meaning that someone, including the victim, could identify or recognize the victim. It does not require the victim's identity to actually be established.
(B) Neither of the following is a defense to the crime specified in this paragraph:
(i) The defendant was a cohabitant, landlord, tenant, cotenant, employer, employee, or business partner or associate of the victim, or an agent of any of these.
(ii) The victim was not in a state of full or partial undress.
(4) (A) A person who intentionally distributes or causes to be distributed the image of the intimate body part or parts of another identifiable person, or an image of the person depicted engaged in an act of sexual intercourse, sodomy, oral copulation, sexual penetration, or an image of masturbation by the person depicted or in which the person depicted participates, under circumstances in which the persons agree or understand that the image shall remain private, the person distributing the image knows or should know that distribution of the image will cause serious emotional distress, and the person depicted suffers that distress.
(B) (i) A person intentionally distributes an image described in subparagraph (A) when that person personally distributes the image.
(ii) A person intentionally causes an image described in subparagraph (A) to be distributed when that person arranges, specifically requests, or intentionally causes another person to distribute the image.
(C) As used in this paragraph, the following terms have the following meanings:
(i) “Distribute” includes exhibiting in public or giving possession.
(ii) “Identifiable” has the same meaning as in paragraphs (2) and (3).
(iii) “Intimate body part” means any portion of the genitals, the anus and, in the case of a female, also includes any portion of the breasts below the top of the areola, that is either uncovered or clearly visible through clothing.
(D) It shall not be a violation of this paragraph to distribute an image described in subparagraph (A) if any of the following applies:
(i) The distribution is made in the course of reporting an unlawful activity.
(ii) The distribution is made in compliance with a subpoena or other court order for use in a legal proceeding.
(iii) The distribution is made in the course of a lawful public proceeding.
(iv) The distribution is related to a matter of public concern or public interest. Distribution is not a matter of public concern or public interest solely because the depicted individual is a public figure.
Contact a California revenge porn lawyer
Since 2004, Vondran Legal® has been a leading litigation firm with offices in California and Arizona. We can help persons dealing with deepfake and porn revenge legal issues (both Plaintiff and Defendants). Contact us to discuss your case at (877) 276-5084, or fill out our contact form for more information.
