Deepfakes and Intellectual Property
The rise of deepfake technology, AI-generated synthetic media that convincingly mimics real people’s likenesses, voices, and expressions, has triggered not only public concern but also significant legal questions, particularly in the area of intellectual property (IP). As the technology becomes more sophisticated, its implications for rights of publicity, copyright, trademark, and even trade secret law are increasingly coming under scrutiny.
What Are Deepfakes?
Deepfakes use deep learning techniques to generate realistic simulations of individuals. These can range from harmless entertainment (e.g., inserting a celebrity into a movie scene) to harmful impersonations (e.g., fake endorsements, misinformation, or revenge content). While the technology is impressive, its potential for misuse is vast and so is the legal gray area surrounding it.
Right of Publicity and Persona Protection
One of the most direct IP implications of deepfakes involves the right of publicity, the right to control the commercial use of one’s name, image, or likeness. Unauthorized deepfakes may infringe this right, especially when they are used in advertising or for profit. Several states recognize this right through statutes or common law, though the scope and enforcement vary.
Example: A deepfake video featuring a celebrity “endorsing” a product they never agreed to can be a clear violation of their publicity rights.
Copyright Concerns
While facts and ideas cannot be copyrighted, original expressions can. A deepfake that mimics a copyrighted performance or merges existing creative works may raise copyright infringement issues especially if the final work contains substantial similarity to the original.
Additionally, who owns the copyright in a deepfake? Is it the creator, the subject, or the AI tool itself? The U.S. Copyright Office has made it clear that works generated entirely by AI without human authorship are not eligible for protection but the gray area deepens when humans are directing or modifying the output.
Trademark and False Endorsement
Deepfakes may also raise trademark issues, particularly when a brand’s image, logo, or trade dress is used in a misleading or unauthorized manner. A deepfake that makes it appear that a celebrity is affiliated with a brand could give rise to claims of false endorsement under the Lanham Act.
Trade Secret Risks
While not commonly discussed, deepfakes could pose trade secret threats if used to impersonate executives or employees in phishing or social engineering attacks. For example, a deepfaked voice message from a CEO might be used to fraudulently authorize wire transfers or disclose sensitive data.
Toward Legal Reform and Ethical Use
Lawmakers are beginning to address deepfakes with legislation targeting misinformation and non-consensual use of likenesses. However, there’s still a need for comprehensive frameworks that specifically address the intersection of deepfake tech and IP rights.
Meanwhile, creators, brands, and individuals must stay informed and vigilant. For companies, this may mean monitoring brand misuse online; for individuals, asserting rights of publicity when likenesses are misused.
Conclusion
Deepfakes challenge the boundaries of intellectual property law and raise critical questions about consent, ownership, and protection in the digital age. As innovation continues, the legal system must evolve to protect creators, individuals, and businesses alike.