Deepfakes: Whose Personality is it Anyway?

  • November 07, 2022
  • Christopher Tsuji

Hollywood-esque special effects that allow anyone to become any person with the click of a few buttons: this is the reality of deepfakes. Deepfakes are a form of technology that uses artificial intelligence (“AI”) to allow a person to impersonate someone else’s appearance and voice.[1] A person only needs a phone or a computer, and an image or video of the desired target.[2] Internet users have created deepfakes to recast actors in movies and used celebrities in unauthorized advertisements, and Hollywood has taken notice.[3] In September 2021, Bruce Willis (the star of Die Hard) authorized a deepfake of himself for use in a Russian telecommunication advertisement.[4] In September 2022, James Earl Jones (the voice of Darth Vader) licensed Disney to use AI to recreate his voice.[5] Deepfakes’ ability to create convincing videos of a person without their consent raises novel legal issues for copyright and tort law.

Copyright Law

Deepfakes can fit within the Copyright Act’s definition of various works; however, there is little clarity beyond that.[6] There is no clear answer about who would be the author. The author could be the impersonated individual (whose face and voice are desired), the impersonator (whose body is used), or even the choreographer (who conceptualized the scene). Problems of joint authorship may also emerge because of the parties’ contributions.[7] Copyright infringement analyses for deepfakes mirror questions that exist for AI generally. Are the works that are used to train the AI reproduced?[8] Do the ensuing deepfakes reproduce a substantial part of the previous works?[9] A fair dealing defence further complicates the matter.[10] Presently, many social media platforms have sidestepped deepfake copyright issues by removing deepfakes on their own initiative (if contrary to content guidelines) and appear willing to accede to requests from impersonated individuals for removal.[11] In the absence of agreeable platforms, aggrieved parties may find success with novel remedies, such as a global injunction to remove or de-list content.[12]