A deepfake of Bruce Willis is advertising Russian mobile phones. Many great artistic and metaphysical questions are raised by this performance. However, this article is going to look at the intellectual property law implications, from a UK perspective.
A deepfake of Bruce Willis is advertising Russian mobile phones. Many great artistic and metaphysical questions are raised by this performance. However, this article is going to look at the intellectual property law implications, from a UK perspective.
I think there are two particularly interesting issues: the rights of the performer, and the copyright implications.
Performers rights are dealt with quite differently in different countries (and in the US, there are different rules in different states).
In the UK, the common law tort of “passing off” encompasses “false endorsement”. There are two elements this: firstly, someone has to have a significant reputation or goodwill. Second, the actions of the defendant have to give rise to a false message which would be understood by a not insignificant section of his market that the defendant’s goods have been endorsed, recommended or approved of by the claimant.
There are two well known false endorsement cases in English law. In the first, a photograph of Eddie Irvine, a well known racing driver, was edited to make it look like he was holding a “Talk Radio” portable radio; and this was false endorsement. In the other case, Rihanna’s photograph appeared on some Topshop T-shirts. In the particular circumstances of the case, people would likely to buy the t-shirts believing that Rihanna had approved or authorised the t-shirts – so again, this was false endorsement.
Using a deepfake of a well known actor in an advert would usually be passing off. Here, I understand that Bruce Willis gave permission to MegaFon, the Russian phone company. Of course, it may not be false endorsement if the original actor isn’t well known.
Things also get more complex if it is harder to identify a person. A deepfake of someone’s voice could be false endorsement, if that voice was recognisable; but voices can be less recognisable than faces.
There are other relevant rights other than false endorsement. Performers of sound recordings currently have a “moral right” to be identified and can object to “derogatory treatment” of their performances. An international treaty, the “Beijing Treaty”, provides for audiovisual performers a right to be identified and to object to detrimental modification of their performances. This has not yet been implemented in the UK. The UK Intellectual Property Office issued a call for views and is considering the responses.
In practice, however most contracts require performers to waive their moral rights, so implementation may not make a significant difference.
Performer’s rights and copyright law more broadly may need to evolve to meet the future challenges that AI will raise. Equity, the actors’ union, is particularly concerned about use of human performances to train AI and generate AI performances, and is campaigning for stronger rights for performers. The campaign is called “Stop AI stealing the show”.
When we say AI, we usually mean machine learning, and that requires data to train the AIs. That data is often a copyright work – a dataset of historical weather data can be used to train an AI, but so can a novel, a film, or a sound recording. News reports say that the AI used to generate a deepfake of Bruce Willis was trained using Die Hard and the Fifth Element. Those films are copyright works.
When AI reads or learns from something it does so by copying them into memory. So an AI watching Die Hard is copying Die Hard. Copying is of course one of the things that is prevented by copyright.
However, AIs are in some jurisdictions getting statutory permission to copy. There are text and data mining exceptions to copyright in Japan, Singapore and the EU, and it may be fair use in the US. Each country has a slightly different approach.
The UK government has recently published the response to a consultation about AI which covered, in part, data mining. The response announced that it will also introduce a copyright and database right text and data mining exception. In the consultation response, “data mining” is given a very broad definition – “using computational techniques to analyse large amounts of information to identify patterns, trends and other useful information”. Deepcake, the Russian company which created the Deepfake of Bruce Willis, reportedly used 34,000 images of Bruce Willis to create an image of him. That is a large amount of information, and they used computational techniques to identify useful information, i.e. what Bruce Willis looks like.
The exception will apply “for any purpose” and the government has said it will not be possible to contract out of this (which is possible in some jurisdictions, like the EU). Rightsholders will be able to charge for use to platforms, but it’s not yet clear how this works. If I have a subscription to Disney+, will that allow me to train an AI to create animation in a Disney style? If I have a Spotify subscription, does that allow me to use data mining to listen to the most popular albums and train an AI to create similar music? It will be interesting to see the draft legislation.
This article was originally published on 21 October 2022 in the Artificial Lawyer, written by Giles Parsons.
Partner
giles.parsons@brownejacobson.com
+44 (0)20 7337 1505
Below are some of the questions we are regularly asked by startups, covering a range of topic areas.
UK law firm Browne Jacobson, which opened its first overseas office in Dublin in September, has outlined its strategic plans to grow its legal team over the next four years.
Bishopsgate Corporate Finance and law firm Browne Jacobson have jointly advised on the acquisition of award-winning tech solutions business, Custard Technical Services by US managers services and cyber security provider, Thrive.
In the ongoing complex litigation between Optis Cellular Technology LLC and Apple Inc., the Court of Appeal ([2022] EWCA Civ 1411) has upheld the High Court’s findings that implementers of standard-essential patents (SEPs) cannot refuse to accept a FRAND license and continue activities in the meantime which constitute infringement: that party must commit to accept a court-determined license if it wishes to avoid an injunction.
Every AI will have its own terms of use. DALL·E 2’s Terms of Use dated 3 November 2022 specify that as between a user and Open AI, a user owns their prompts and uploads. Open AI also assigns to the user all rights in any images generated by DALL·E 2 for that user (subject to the user complying with those Terms of Use, and to a licence to use inputs and output to develop and improve the services).
A deepfake of Bruce Willis is advertising Russian mobile phones. Many great artistic and metaphysical questions are raised by this performance. However, this article is going to look at the intellectual property law implications, from a UK perspective.
The Digital Services Act (the “DSA”) has today (27 October) been given the go-ahead by the EU Council and will enter into force by early 2024.
It is clear that the digital landscape, often termed cyberspace, is a man-made environment, in which human behaviour dominates and where technology both influences and aids our role in it — through the internet, telecoms and networked computer systems, which are often interdependent. The extent to which any organisation is potentially vulnerable to cyber-attack depends on how well these elements are aligned.
Browne Jacobson’s corporate technology dealmakers have advised Agilico, a workplace technology business, on its acquisition of Capital Document Solutions Limited for an undisclosed amount.
The increased use of artificial intelligence (AI) is revolutionising the way businesses operate and is having a disruptive impact in sectors that have traditionally been slow to modernise.
Since the UK left the EU and are now able to move away from the EU data protection regime, the UK government have implemented a national data strategy with the aim of reducing the burden on organisations but maintaining a high data protection standard.
The Chancellor’s recent mini-budget provided a significant announcement for business as it was confirmed that the off-payroll working rules (known as “IR35”) put in place for public and private sector businesses from 2017 and 2021 will be scrapped from April 2023.
In this article we look at local authority companies and whether they are subject to the Freedom of Information Act 2000. And for those that are, what information are they legally obliged to submit.
Browne Jacobson’s specialist cleantech lawyers have advised AIM listed Clean Power Hydrogen Group Limited (CPH2) on its licence agreement with Bentec GmbH, a member of the Kenera business of the KCA Deutag Group. Kenera will manufacture CPH2’s unique membrane-free electrolysers from its facility in Bad Bentheim, Germany.
Browne Jacobson’s corporate finance lawyers have advised leading mid-market private equity firm, LDC and management on the sale of specialist managed IT services provider, Littlefish to Bowmark Capital.
The Digital Markets Act (the “DMA”) joins the dots between competition law and data protection law and actively targets data-driven platforms. It is also a comprehensive regulation to take note of, with familiar GDPR-style fines tied to turnover.
The use of social media platforms and applications can have overwhelmingly positive benefits for public bodies. However, regulatory action recently taken by the Information Commissioner, has highlighted various pitfalls that public bodies should seek to avoid if allowing staff to use social media as a communication tool.
We advised equity investor, Business Growth Fund on its exit from mobile data SIMs & business communications specialist Jola Cloud Solutions.
This article covers, at a high level, some of the legal issues that arise in the lifecycle of the innovation and deployment of new technology within the energy sector. It is not intended to be a comprehensive account of all legal aspects.
First Hydrogen has identified 4 sites in the UK where it plans to locate large hydrogen refuelling stations for commercial vehicles. The sites will also accommodate on-site hydrogen production of between 20 and 40 MW (totalling 80 MW - 160 MW across all 4 locations) and will serve the urban areas of Greater Liverpool, Greater Manchester, London and the Thames Estuary. The plans form part of the Energy division’s strategy to develop green hydrogen production projects, initially in the UK and Canada.
As has been widely reported this week, some 3,000 UK workers are taking part in a six month trial to assess the viability of a four-day working week without any reduction in their normal pay.
National law firm Browne Jacobson has launched an electric vehicle (EV) scheme as part of its employee benefits package. The benefit will be available to all of the firm’s employees across its five offices, including Birmingham, Exeter, London, Manchester, and Nottingham.
In anticipation of the adoption of the Building Safety Bill, our specialist compliance and regulatory team will give an overview of the measures proposed in the Bill.
The data protection legislation (namely, the UK GDPR and Data Protection Act 2018) contain various provisions that deal with the processing of personal data for research purposes.
The Presidents of the Employment Tribunals England and Wales and Scotland have issued a new road map for 2022-23, providing an update on the resourcing challenges faced by employment tribunals and the steps put in place to address these.
Browne Jacobson’s national IP lawyers are celebrating after being ranked in the 2022 World Trademark Review (WTR) 1000 - the independent guide which recognises leading trade mark experts across key jurisdictions around the globe.
We invite you to watch our on-demand webinar which looks into how healthtech is commissioned from a health and tech perspective.
The key benefits and pitfalls for agile software contracting, and recommendations for government bodies.
