Take a selfie – NOW!

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LEGAL BRIEF By Max Stul Oppenheimer, Esq. Deepfakes are a growing problem. Could taking a selfie be your best defense? In the last column, we saw why
[See the full post at: Take a selfie – NOW!]

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SueW, DLivesInTexas, rc primak

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Mr. Oppenheiner: Maybe I am missing something in your article, but what does one do with the selfie, once one has taken it, to establish a copyright of it?

And how that copyright covers all possible graphic deepfakes of oneself, with or without sound, both still and moving, including caricatures?

Ex-Windows user (Win. 98, XP, 7); since mid-2017 using also macOS. Presently on Monterey 12.15 & sometimes running also Linux (Mint).

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rc primak

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I have several webcam photos of myself, which have been used for creating online avatars. The avatars have been posted at various sites where I have commented, and one or more are registered with Gravitar (one for This Site). Does this mean I am covered as a copyright holder? Or do these copyrights belong legally to the site owners where the avatar images are hosted? Can I register an avatar created at one of these sites with my own copyright?

-- rc primak

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Mr. Oppenheimer,

My question revolves around judicial enforceability.

When we live in an era when judges are loath to take a stand to enforce civil laws when defendant(s) openly mock and/or ignore the courts by not appearing and/or not complying with the applicable Rules of Discovery, what use is this?  (See Jones, Alex.)  Motions to Dismiss are rarely granted and that then sends cases through Discovery where it perhaps becomes ripe for at least partial disposition through a Motion for Summary Judgment.  But if defendants openly mock or ignore the system (while raising funds the entire time) what use is this solution?

Thank you and I hope this question doesn’t bring you back to thinking of law school presentations.

John Steiner

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OscarCP

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In the last column, we saw why law must lag technology…

Not only the law but judges are also way behind current technology.

2 examples from the latest Kyle Rittenhouse murder trial.

1. The prosecution wanted to show video clips from the murder scene on an iPad.
During the video play the prosecution zoomed into the scene.
The defense argued that the iPad AI changed the real scene while zooming.
The judge ordered the prosecution to bring within 15 min an expert to refute defense claims.

2. A citizen has sent the prosecution a live video of the shootings.
The prosecution, using Apple device, tried to send the video to the defense using AirDrop. It didn’t work as the defense used Android device.
The prosecution then sent the video using email. Apple’s mail used compression as to minimalize file size. The defense cried for mis-trial.
At the end the video has been copied to a USB DOK and was handed to the defense.

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rc primak, wavy, OscarCP

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That was a close call. Good thing prosecution was under the impression corporate media sufficiently brainwashed the American people in to believing the he was guilty and argued the mistrial. Kid suffered enough, one year of this farce political trial that even the main prosecutor there declined to pursue.

And yes I watched the trial, its only logical that defense has to have the same evidence in order to argue or call the right expert, because that video was basically a use your imagination type thing, because you could not see anything. Its remarkable that prosecution was so inept, maybe it was their first time using email. Its also puzzling that public servants use overpriced apple products.

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I’m not sure the selfie idea works. The deep fake inherently must use footage from somewhere. And that source will of course have copyrights. And, importantly, it will not be considered a derivative work of any footage I take of myself. Otherwise you could sue for copyright infringement of any video that had you in it.

So I see it likely that the deepfake would be considered a derivative work of the source(s) where it got footage of me, and not my selfie. So it would be up to owner of that source to sue, not me.

The main way I have seen the selfie strategy in play is as trademark. With trademarks, the source doesn’t matter. However, to have a trademark, you must do business with that mark. So it works great with actors and possibly other famous people, but not so much with Joe Average. That is, unless you start a business with your image, even if it’s one that you don’t expect to make any money.

The short of it is that we definitely need new laws for this, and can’t rely on rulings on existing situations to prevent these problems. Libel/defamation isn’t a slam dunk right now, but it needs to altered so it will be. And none of these problematic workarounds.

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rc primak, OscarCP

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I think you nailed it. There’s a big difference between copyrighting an image of yourself, vs. trademarking your image and likeness. I wasn’t aware that you have to actually do business under your image and likeness to trademark them. Must be like in the music industry, to enforce a copyright, you have to publish and distribute a minimum number of copies of your work.

-- rc primak

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I’m not an attorney, but I’m skeptical that you’d get any deepfake remedy for your $45 or $125 copyright registration fee. The registration fee, as I understand it, would protect that one selfie image you’ve registered, not your likeness which also changes year-by-year.

If there was broader copyright protection for your likeness, sensitive celebrities would be registering a copyright for a selfie so they could sue people who photograph them in public without authorization and post the image on the Internet–perhaps in a compromising situation–even if there was no commercial use of their image. This would be a much broader assertion of copyright protection than we’ve seen.

And one obvious defense to a deepfake damage claim is parody, which isn’t discussed in this article.

I’m very sympathetic to the problem of deepfakes, but I don’t see this as a solution.

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OscarCP

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Twitter under the new CEO has changed its privacy policy and added media (photos, video..) ..

Twitter will take down pictures of people posted without their permission.

A sweeping expansion of Twitter’s policy against posting private information was met with backlash shortly after the company announced it on Tuesday, as Twitter users questioned whether the policy would be practical to enforce.

Twitter’s new policy states that photos or videos of private individuals that are posted without their permission will be taken down at their request. Twitter’s rules already prohibit the posting of private information like addresses, phone numbers and medical records.

“When we are notified by individuals depicted, or by an authorized representative, that they did not consent to having their private image or video shared, we will remove it,” Twitter’s new policy states. “This policy is not applicable to media featuring public figures or individuals when media and accompanying tweet text are shared in the public interest or add value to public discourse.”..

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