By Ken Dulaney
Individual Rights Protections Against Deep Fakes of One’s Own Image
A recent story about high school students using an AI tool to create nude photos of classmates has generated a discussion about the rights of people to defend unauthorized modification and publication of their image.
After reading this story, we were curious about existing U.S. laws that could be used by the legal practice to assist individuals to defend themselves against perversions of their own image by AI systems.
The legal ramifications of publishing an altered image of an individual without permission can vary depending on the specific circumstances of the case, but there are several potential legal justifications that could be brought in a claim against those who authored the modified image.
Potential Legal Justifications for Altered Images
Defamation – If the altered image is defamatory, meaning it falsely portrays a plaintiff in a way that could harm their reputation, someone could sue the publisher for defamation. To succeed in a defamation lawsuit, the plaintiff would need to prove that the publisher made the defamatory image about the plaintiff with actual malice, meaning they knew the image was false or made it with reckless disregard for the truth.
Right of publicity – If the altered image is commercially exploited, meaning it is used to sell a product or service or to endorse a product or service, a plaintiff could sue the publisher for violating the plaintiff’s right of publicity. This right protects individuals from the unauthorized commercial use of their name, likeness, or other persona.
Invasion of privacy – If the altered image is unreasonably intrusive or depicts a plaintiff in a false light, the plaintiff could sue the publisher for invasion of privacy. This right protects individuals from intrusions into their private life and from false portrayals of them that could damage their reputation or standing.
Copyright infringement – If the altered image is a copyrighted work, the copyright holder could sue the publisher for copyright infringement. Copyright protects original works of authorship, including photographs, and it gives the copyright holder the exclusive right to reproduce, distribute, and display the work.
Digital Millennium Copyright Act (DMCA) – If the altered image is hosted on a website, the copyright holder could also send a DMCA takedown notice to the website’s hosting provider, which is legally obligated to remove the image from the website. (See https://www.copyright.gov/legislation/dmca.pdf)
In addition to these legal claims, it may be possible to seek injunctive relief to stop the publication of the altered image and to recover damages, such as damages for emotional distress, lost wages, and attorney’s fees.
Bottom Line
Protecting one’s own image was difficult in the early Internet age, but with the advent of sophisticated AI, deep fakes of an individual can be so lifelike as to fool anyone, including the copied individual themselves. Stopping these fakes proactively may be difficult because of difficulty in detecting their development and posting.
Vigilance and self-education on the matter are the best course of action for those who fear exposure. Yet post event remediation such as discussed above is likely the best way to thwart future activities.
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