Jane C. Ginsburg (Columbia U Law) and Graeme W. Austin (Victoria U Wellington) have posted “Regulating Deepfakes at Home and Abroad” on SSRN. Here is the abstract:
AI technology enables the creation of “deepfakes”—known in legal documents as “digital replicas”—capable of simulating the visual and vocal appearance of real people, living or dead. AI programs can also generate musical compositions in the style of well-known composers or performers, as well as video sequences. What may be good fun in private may become pernicious, offensive, and even dangerous, if widely disseminated over social media or through commercial channels. But, at least in the U.S., legal protections for performers and ordinary individuals against digital replicas, are at best, scanty. The first part of this Essay reviews existing protections against the creation and dissemination of deep fakes under U.S. copyright and trademarks laws as well as representative State right of publicity laws. Our brief survey supports the conclusion of the U.S. Copyright Office that “new federal legislation is urgently needed” because “existing laws fail to provide fully adequate protection.” These failures appear plainer still once consideration extends to the capacity of these doctrines to reach foreign violations. The second part of this Essay’s analysis will show how the currently pending U.S. legislation may, and may not, provide performers and ordinary individuals with enforceable rights against the use of their voices and visual likenesses in digital replicas. Given the few material barriers to cross-border dissemination of deep fakes, any evaluation of the strength of the protections afforded by a new U.S. intellectual property right should consider its international scope, particularly in light of recent Supreme Court caselaw restricting the territorial reach of U.S. intellectual property protections.