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Media Law in the News 2

Summary of Issue:

Deepfakes turned a lot of heads (figuratively and literally) when the technological advance first made a mainstream news story circa. 2018. The notorious original use of deepfakes has since faded from relevancy and been replaced with more light-hearted and comical applications. One such example is “speech synthesis” in which a popular figure’s voice is given a script to read that they likely would never say otherwise. Just as deepfakes were fed hours of visual information to learn, speech synthesis is fed heaps of audio content to work with.

Recently, Jay-Z’s management agency, Roc Nation LLC, filed DMCA takedown requests on speech synthesis YouTube videos featuring Jay-Z’s voice. Roc Nation is quoted as saying, “This content unlawfully uses an AI to impersonate our client’s voice.” The takedown requests were originally honored by the video hosting platform, YouTube, but were later rejected and are pending further information. The content creator behind the channel “Vocal Synthesis” where the speech synthesis videos are being uploaded, has claimed his intentions are to display a less malicious use of deepfake techniques and otherwise is only motivated by creating entertainment. The videos are not monetized.

Legal Questions Raised & Applicable Rule:

The relevant legal concerns of this case have to do with Jay-Z’s right to his likeness and the nature of how the content was created as well as its commercial status. There are three legal questions in this case:

1. Can an AI program be sued for copyright?

2. If content like this is not for commercial purposes, can it count as appropriation?

3. Does this kind of content fall under fair use?

Applying the Relevant Doctrine / Precedent:

The first question regarding the role AI plays in this case is something that is somewhat up to debate. The most recent precedent in this area comes from a case involving computer-generated imagery that was used in triple-A movies. The inventor of the software sued various movie studios for a misuse of the technology and while the case is not yet resolved, the idea that the work produced in the software is purely derivative of the software itself has already been rejected.

The Plaintiff’s case for Appropriation is as follows:

1. Using a person’s name, picture, likeness, voice, or identity

2. For advertising or other commercial uses

3. Without permission.

The defense’s case for Appropriation can be from the point of:

1. News

2. First Amendment

3. Incidental use

4. Mass media advertising

5. Consent

Appropriation is broken up into commercialization and right of publicity. Commercialization is not relevant here as the case involves no questions related to money. Right of publicity is defined as: the appropriation tort protecting a celebrity’s right to have his or her name, picture, likeness, voice, and identity used for commercial or trade purposes only with permission. This tort also explicitly mentions commercialization as an essential element, so it is also null.

Towards the third question, fair use must be defined. Following are the defense points of fair use:

1. For what purpose was the copyrighted work used without permission?

2. What was the nature of the copyrighted work that was used without permission?

3. How much and what portion of the copyrighted work was used without permission?

4. What effect did the unauthorized use have on the copyrighted work’s material value?

As well as the plaintiff’s case for copyright infringement: [A copyright plaintiff must prove:]

1. The word used is protected by a valid copyright – meaning it is an original work fixed in a tangible medium;

2. The plaintiff owns the copyright;

3. The valid copyright is registered with the Copyright Office; and

4. There is evidence that the defendant directly copied the copyrighted work or the infringer had access to the copyrighted work, and the two works are substantially similar.

In addition to the points of fair use, the Transformative Use Test is relevant: A test to determine whether the First Amendment protects a work that uses a person’s name, picture, likeness, voice, or identity, for artistic purposes. Changing the original to give it new meaning or a different message justifies First Amendment protection.

Lastly, it should be noted that statutory damages may be awarded even if the copyright infringer did not make a profit from the content.

Conclusion:

The first question is likely the most difficult conceptually (and I would not be surprised if we see a case against the AI software specifically) as there is not much creative work being done on the part of the video uploader (Vocal Synthesis) unlike with the big-budget movie example. As such, there is no real precedent for this situation and an original judgement would have to be made. Even if the AI was found “guilty” of copyright infringement, I do not see this ruling as being strong enough to validate the takedown of the videos when compared to other portions of the case.

The second question is covered by the fact that the speech synthesis videos are not for commercial purposes. Therefore, Roc Nation can claim no right of ownership regarding Jay-Z’s image. There is the potential of statutory damages, but this would require consideration of the third question.

As the copyrighted material was used for non-commercial purposes and in no way affects the material value of Jay-Z’s image, it is likely that this would be found to be fair use. However, the merit of the work could be deemed less than creative and more so an informational demo of vocal synthesis technology and thereby would be granted less protections as the court typically grants more protections to creative works. In terms of the transformative qualities of the work, it is both completely transformational and non-transformational at the same time. The work is transformational because the scripts consist of words Jay-Z has never said. However, the work is also non-transformational because it a near perfect technological representation of Jay-Z’s image by route of his voice. Regardless of the transformative and creative statuses of this work, I do believe this case comes purely down to commercial consideration. If the videos in question were monetized, Roc Nation would likely have a legitimate case to request a DMCA takedown. But as the situation stands, it is likely that Google will allow the videos to remain on YouTube and not penalize the channel Vocal Synthesis.

This case made me appreciate the complexity of cases that Google (via YouTube) likely must deal with daily. A wide array of communication law had to be considered just for these two YouTube videos, and I could have included even more doctrine and precedent. Additionally, this case brought the importance of commercialization to my attention. Previously, I had not paid much attention to how the status of commercialization can affect a case, but this situation hinged on the monetization status of the videos.

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