AI the EU and US – Part 2-The Deep Fake

By Professor Mark Engelman, Barrister, 4-5 Gray’s Inn Square

One of the world’s all-time impostors was Arthur Orton, aka Thomas Castro. He was a butcher from Wagga Wagga, Australia and having seen the Dowager Lady Tichborne’s newspaper article requesting news of her son who had left Great Britain in 1823 assail The Bella, which had floundered and was presumed lost responded by claiming to be her estranged son. He successfully deceived her into believing he was her heir and received £1,000 by way of annuity.

History repeats itself. In fact, according to Wikipedia, photographic manipulation was first developed in the 19th century in the production of the now quaintly termed “motion picture” industry. Today AI has given us the portmanteaux word “deepfake’ which combines the words “deep learning” and “fake”. It is now used to create a range of digital materials from child abuse video clips to faking the voice over and images of well-known personalities in the entertainment industry.

So far we have seen Barak Obama mouthing someone else’s words, those of a Jordan Peets, in a clip in which the ex-President states: “President Trump is a total and complete dip s**t”. That was in 2018, the date the AI video clip was created and, in order to avoid confusion, not the date the epithet applied.

Hollywood’s actors and writers are naturally in revolt at the risk AI and deep fake poses to the entertainment industry. A placard of one of the strikers of the Writers Guild of America read: “AI wrote this sign”. The word “the” had been crossed-out and replaced with the word “this’ written in a manuscript hand which suggests that AI created images will never be as good as those which depict human actors. The union is concerned that its members will lose control of their lucrative likenesses but their reproduction in unauthorised audio and visual works.

In the first of these 2-part articles the proposed EU AI Act intends to shift regulation on to the creators of AI. However, at least as regards the entertainment industry, legal remedies to, at least that malevolent aspect of the deep fake industry, already exist.

Within England and Wales personality rights have long protected the image of famous people within the rather narrow confines of passing off. Take Rhianna, for example, who successfully injuncted Top Shop from using her image on its’ range of t-shirts. There existed a close connection between Rhianna and Top Shop which assisted the grant of the injunction. She had been Top Shop’s fashion model and ambassadress. Without such a close connection the action may well have failed. In Eddie Irvine v Talk Sport Radio, the misuse of Mr Irvine’s image holding a radio branded Talksport, was based upon the notion of a false endorsement of the product, in that case, the radio broadcast, however many other cases have failed.

In some other countries of the world image/personality rights are capable of protection. Australia and Hong Kong apply the same principles to those here. The basis of the action is passing off.

In Canada, particular provinces protect those rights under statute provided one can demonstrate both an intention to create the confusion caused to the public and commercial gain to the Defendant. Cyprus prevents advertising by false endorsement. Denmark and France excludes protection for famous personalities. Germany restricts the right to a person’s name and picture. So voice-over’s are not covered. Greek protection is only afforded to the misuse of photographs taken in public places.  Spain relies upon the Data Protection Act. Quite surprisingly, China will protect the misuse of an image, whilst it seems according to public sources, the Government covertly soaks up millions of images of unsuspecting members of the public.

South Africa and the United States are countries which extend protection not merely to the likeness of a person but even their attributes. They include the name, image, likeness or other aspects of identity. The US Supreme Court protected misuse of clips from Hugo Zachini’s appearance in the film, Human Cannon Ball. California has protected the use of footage from Back to the Future which unlawfully depicted Cripsin Glover. Tom Cruise and Nicole Kidman prevented use of their images on cosmetics. 30 of the 50 states recognise rights of publicity.

But no country has managed to get quite as far as the little island of Guernsey, more accurately named The Bailiwick of Guernsey. It protects image and personality rights right down to their mannerisms. It applies a registered trade mark-like analysis to infringement. A personality registers their image/mannerism on a register and it is renewed like any other trade mark. It has registered only 80 or so image rights since 2012 the date the Ordinance came into effect but they include “the likes” of Philip Marlowe the fictional detective created by Raymond Chandler, Stelios, the founder of Easyjet and Tom Cleverly the international footballer. As the list suggests it protects fictional and real-life personalities as well as dead ones. Yes, and it protects voice overs alongside the signature, likeness, appearance, silhouette, feature, face, expressions (verbal or facial), gestures, mannerisms or any other distinctive characteristics or personal attribute.

The value of registering an image right on Guernsey appears at first sight too light a counterweight to the impact of the global dissemination of deep fake images but the sea of the internet laps up upon many a distant shore. A deep fake image published on a website in say Columbia becomes an image right infringement in Guernsey which translates into an injunction enforceable in England & Wales.

Returning to the Mr Obama deep fake clip, the ex-President’s difficulty arises from the fair dealing defence which permits use of his image for the purposes of news reporting, commentary and satire. Jordan Peets was surely joking when he described Donald Trump in such terms?

However, Arthur Orton, the Titchborne Claimant, was in fact revealed by the jury in R v Castro as an imposter and he was sentenced to 14 years for perjury. Upon release he maintained he was Titchborne. When he died in 1898 the Tichborne family permitted him a coffin plate: “Sir Roger Charles Doughty Tichborne” simply because “no legal means of preventing such an outrage existed”. Now 6-foot under, Author Orton brings a new meaning to the term “deep fake”.

 Professor Mark Engelman, Barrister, BSC ( PHARMACOL)  DIP Law
Member of The Thomas Cromwell Group
4-5 Gray’s Inn Square

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