Deepfakes and Intellectual Property Legal Issues

The following article is a summary of the full practice note, available to Practical Guidance subscribers by following this link. Not yet a Practical Guidance subscriber? Sign up for a free trial here.

The complete article is written by Danielle F. Bass, partner at Honigman LLP, Natasha Shlaimon,  a corporate attorney at Honigman LLP, and  Nathaniel J. Penning,  a corporate attorney at Honigman LLP.

Introduction and Overview 

This article analyzes the legal and intellectual property challenges posed by deepfakes—highly realistic, AI-generated media that manipulate audio and visuals to create deceptive content. Deepfakes are shown to blur the boundaries between genuine and fabricated material, raising significant concerns regarding misinformation, manipulation of public opinion, threats to democracy, fraud, identity theft, defamation, and other negative consequences.

Understanding Deepfakes

An examination of the technology reveals that deepfakes are capable of altering original images, audio, or video so effectively that the authenticity of the content becomes increasingly questionable. The text explains that although deepfakes offer potential benefits in applications such as entertainment, education, and creative industries, their use also introduces considerable risks. These risks include the erosion of public trust, manipulation of political processes, and various forms of reputational harm and personal rights violations.

Regulatory and Legislative Landscape

A detailed review of the regulatory and legislative landscape highlights the current inadequacies in specifically addressing deepfakes. Despite the absence of comprehensive federal laws specifically targeting deepfake technology, several targeted measures. For instance, the Federal Communications Commission has taken action by banning unwanted robocalls that use cloned voices generated with AI, a move intended to curb fraudulent practices. In addition, several states have enacted or are considering laws aimed at combating nonconsensual and malicious deepfakes, with more than 50 bills introduced during the recent congressional session. Such state-level legislative efforts underscore the growing urgency among lawmakers to balance the need for consumer protection with the desire not to stifle technological innovation.

Intellectual property issues are explored extensively throughout the full article. It is explained that deepfake content typically does not qualify for trademark or patent protection since trademarks are designed to identify sources of goods or services, and patents protect new, useful inventions rather than manipulated digital media. Attention is then turned to copyright protection. Copyright law, which extends to original works of authorship that are fixed in a tangible medium, is argued to potentially apply to deepfakes—provided that the final work exhibits a minimal degree of creativity and includes significant human inputs. Works created solely by automated processes without human intervention would not satisfy the human authorship requirement and may therefore be excluded from protection. The discussion emphasizes that when creators supplement the AI-generated elements with thoughtful editing, arrangement, or integration with human-authored content, the resulting work might meet the threshold for copyright protection.

The full article also addresses the potential legal liabilities stemming from deepfake creation, publication, and distribution. It identifies various causes of action, including claims based on the right of publicity, trademark infringement, and copyright infringement. Tort claims such as invasion of privacy, defamation (both libel and slander), and intentional infliction of emotional distress are discussed as legal routes available to individuals or companies adversely affected by deepfakes. In parallel, both civil and criminal statutes—including the Computer Fraud and Abuse Act and identity theft laws—are examined as instruments that could be employed to address the harmful consequences of deepfake misuse.

Strategic recommendations are provided in the full article reviewing ways to reduce risks associated with deepfakes. These mitigation strategies include ensuring that proper rights and licenses are obtained for any original content used, incorporating watermarks or disclaimers to clearly identify manipulated media, and employing advanced detection tools to monitor and flag unauthorized deepfake content. Moreover, the importance of developing robust response plans is underscored, so that swift remedial action can be taken in the event of reputational damage or legal disputes.

Overall, the full Practical Guidance article offers an in-depth resource that unites technological insights with legal analysis, providing clarity on the multifaceted challenges posed by the rapid advancement of deepfake technology. The discussion underscores the pressing need for adaptive regulatory frameworks and proactive mitigation strategies as society contends with the evolving risks and legal complexities associated with deepfakes.

The above article is a summary of the full practice note which is available to Practical Guidance subscribers by following this link. The complete article is written by Danielle F. Bass, partner at Honigman LLP, Natasha Shlaimon,  a corporate attorney at Honigman LLP, and  Nathaniel J. Penning,  a corporate attorney at Honigman LLP.

Practical Guidance subscribers may access the full article here. Not yet a Practical Guidance subscriber? Sign up for a free trial here.