… This article is organized as follows. Section 2 briefly explores the development of deepfake technology, together with the risks deepfakes may pose to the individual. Section 3 introduces the legal framework and the generally accepted views on publicity rights in California. The Californian approach is used as a backdrop for Section 4, which evaluates English image rights jurisprudence as a form of IP, as a commercial asset, and finally, as an element of privacy. Section 5 argues that despite California’s recognition of publicity as a discrete right, it is in practice a nebulous term for multiple causes of action. Regardless of its nomenclature, the Californian right shares much in common with its English cousin and, accordingly, there is little merit in transposing the Californian approach into English law. Section 6 concludes by conceding some risks posed by deepfakes may not be capable of legal remedy at all, be they rooted in publicity actions or otherwise.
Kelsey Farish, Do deepfakes pose a golden opportunity? Considering whether English law should adopt California’s publicity right in the age of the deepfake, Journal of Intellectual Property Law and Practice, https://doi.org/10.1093/jiplp/jpz139. Published: 13 November 2019.