Two recent developments – one legislative and one a ruling in an ongoing lawsuit – have got me thinking about the consequences when copyright tries to address rights in the human body. It is an area that calls for careful thought and restraint. The legislative issue is so-called “deep fakes” – which are a serious and deeply troubling problem. But it is true nevertheless that moral panics lead to poor decisions, and I am afraid that the horrified reaction to some of what is being done, or could be done, with “deep-fake” technology is sometimes overwhelming common sense.
There are many proposals about how to deal with deep fakes, where artificial intelligence is used to manipulate the image and/or voice of a person in order to, usually, embarrass them, including several bills in the U.S. Congress. But the immediate cause of these reflections is a pair of legislative proposals from Denmark and the Netherlands that would provide protection – using the framework of copyright’s “Neighboring Rights” – to the image and likeness of human persons. This is often discussed, loosely and inaccurately, as copyright in human faces. The bills are certainly copyright-like, using the category of related rights, as well as creating exclusive rights (which are the core of all intellectual property regimes) and employing similar terms of protection and remedies as other forms of IP.
From the moment I first heard about these proposals, they troubled me, but I struggled to put my finger on exactly why. Then a colleague pointed out this blog post by copyright scholar Brent Hugenholtz of the Institute for Information Law in the Netherlands. Hugenholtz is always insightful, and for me he put his finger on the problem when he wrote that “Intellectual property rights regimes commodify the subject matter of protection. The main rationale of copyright and related rights is not to prevent creative content from being used, but quite the opposite: to foster markets where rights to exploit the content are exchanged for money.”
It is this sense of turning the human person into a commodity that is at the core of my resistance to addressing deep fakes in this way. We are, and should be, particularly sensitive to such commodification in the United States, where we have a tragic history of treating certain people as goods to be bought and sold. We even have a well-known precedent, Moore v. the Regents of the University of California (Cal 1990), to remind us that, even when there is a clear wrong being committed, making a body into something that can be owned is not the solution. In Moore, bits removed from a patient during surgery were used to create a cell line for research purposes without the patient’s consent. Consent, of course, is the bedrock of medical ethics, so a clear moral norm was violated. Still, the California Supreme Court declined to grant that patient an ownership right in his own spleen, recognizing that such a right was a dangerous precedent to set. Instead, the court pointed the plaintiff to other available remedies.
The subtitle of Hugenholtz’s post, “Right idea, wrong legal framework,” reminds us that the best approach to deep fakes is similar to what the court in Moore did – look for existing laws that will address the problem without creating a new, and dangerous, property right. For the EU, Hugenholtz lists a half-dozen existing legal regimes to which a victim of a deep fake could turn. All of those regimes exist in the United States as well, where we have gained some experience in licensing the human likeness recently using Name, Image and Likeness (NIL) rights, which are allowing college and university athletes to make a lot of money before they ever “turn pro.”. Such image and publicity rights are one way we could attack the problem of deep fakes; privacy rights is another.
My sensitivity about property rights in the body also has made me uncomfortable with the cases involving tattoos. Recently the Ninth Circuit ruled in the ongoing case of Sedlik v. Kat von Drachenberg, where the challenge to well-known tattoo artist Kat von D’s copying of a famous photograph of Miles Davis on to a friend’s arm has so far withstood a challenge from the photographer. A jury in the original trial held that the two works, the photo and the tattoo, were not substantially similar, even though the former was directly copied during the tattooing process. The Ninth Circuit panel was unanimous in upholding that verdict, but two judges used concurrences to complain about letting juries decide the issue of substantial similarity. We have certainly not heard the last of this case.
As I have considered what the jury held in this tattoo case, and why the judges complained about that holding, I have come to think that the jury was actually onto something. There is something fundamentally dissimilar between a picture or photograph, fixed in a tangible but inanimate medium, and something inked on the human body. Thinking about copyright as a body of law, I wonder about the remedies available if a tattoo was found to be infringing, among other things. One cannot remove or destroy the offending copies without grossly violating the basic human right to bodily integrity. As I say, I think the jury in the Sedlik case might have hit on an important principle; we cannot apply traditional IP laws to human bodies because the body itself is not similar to any other medium. It cannot be commodified or put at the disposal of some putative rights holder; it has a sanctity that must supersede any regime of property rights[1] .
[1]I think a final short paragraph acknowledging that intellectual property rights, both copyright and trademark, are federal and therefore equally applied across the US. Privacy and NIL are rooted in state law and often enforced by contract, providing a patchwork of approaches. The legislative approach of using IP law is therefore appealing, although inappropriate and likely with unintended consequences.