Malicious Pornographic Deepfakes Aren’t Just ‘Free Speech’

The Motion Picture Association of America (MPAA) and the Entertainment Software Association (ESA) want New York lawmakers to be afraid of passing a bill proposed by Assemblywoman Helene Weinstein and Sen. Diane Savino, legislation that would give individuals digital rights to their persona in motion pictures, video games, pornographic videos and other media. These organizations claim this legislation chills speech. But lawmakers should be more afraid of what these entities call “free speech.”

For example, the internet is filled with thousands of nonconsensual deepfake pornographic videos that depict mostly female victims performing sex acts. For those unfamiliar with this emerging threat, deepfake technologies use artificial intelligence to turn existing images into fictional live-action performance. Every single New Yorker with a social media account is now at risk of this form of image-based sexual abuse. It is only a matter of time before a schoolteacher loses her job because of one of these deepfake videos.

Are such abusive depictions just another form of free speech? No. However, the MPAA, the ESA and the trans-national media corporations that are their member companies make this argument. Even when presented with the most abhorrent, indefensible use of digital human technologies, these corporations wrongly invoke the First Amendment, which already has long been balanced against other competing interest like libel, fighting words, fraud, privacy and intellectual property rights, in their efforts to persuade legislators.

Using digital technologies to depict someone in a sex scene without their consent is more correctly thought of as a form of sex abuse — abuse that will haunt that individual for the rest of their life. Victims need the kind of protection this legislation contemplates, including the right to be able to ask judges to order the removal of nonconsensual sex scenes before they are distributed, and the genie gets out of the bottle.

This legislation does more than address the deepfake pornography problem. It also benefits performers by shaping the new, wholly undefined rights to one’s digital replica that the New York Court of Appeals recently recognized in a major decision, Lohan vs. Take-Two. While Lindsay Lohan lost her case against the makers of Grand Theft Auto 5 for other reasons, the court’s ruling did say that digital portraits in video games or like media can be protected under the law.

And so, the legislation specifies that entertainers and athletes have clear, unequivocal digital rights to their professional performances in creative audiovisual and sound recording content. The state’s robust performance community should not have to endure years of costly litigation to protect their basic livelihood and artistic legacy. Finally, this legislation extends these rights to the spouses and children of deceased performers for a term of 40 years after death.

Performers should not be used for commercial purposes without their consent, and without getting properly paid.

But that’s the threat before us. Today, a film producer can digitally insert an actor into a movie to give a performance without any compensation. Today, a hologram company can project a deceased singer to a sold-out concert venue without ever having to consult the person’s widow.

Even more, with the assistance of voice-cloning technology, that hologram will soon be able to perform a song that the individual never actually sang while alive. Do these entertainment corporations take the position that all such uses and abuses are just free speech?

Certainly not; if they did, they would not be leading advocates for strong federal copyright laws.

Consider the hypocrisy: If someone puts the character Wonder Woman in a movie without consent, Warner Bros. would send a cease-and-desist letter or ask a judge for a preliminary injunction. But if someone superimposes Gal Gadot’s face into a sex scene, these corporations argue that this legislation should provide no remedy for it, all in the name of “free speech.”

If the law accepted these corporations’ views, that would mean our legal system would extend the character Mickey Mouse more protections to nonconsensual digital sex scenes than it does people like Scarlett Johansson or you or me. And while the most extreme examples of this sexual abuse play out with deepfake porn, there is a pattern of the industry failing to follow the rules on sex scenes and consent, even in mainstream content. Clearly, we can do better.

The MPAA and ESA accuse this legislation of being overly broad. Quite the opposite; it emphatically provides content creators broad First Amendment exemptions from the law, such as the rights to tell stories or to report on public affairs.

MPAA and ESA are blindly and reactively invoking the First Amendment out of a misplaced concern for their ability to create meaningful and financially successful projects. The unintended consequence of that advocacy is that these major corporations are enabling others to steal people’s images and likenesses and use them to commit sexual abuse or intellectual property theft.

Carteris, star of the Fox TV series “BH90210,” is president of SAG-AFTRA.
 
The above first appeared in the New York Daily News on June 18, 2019.