Dear Doc:

Lately I have been reading a lot about “deep fakes”, which seem to be photos and videos that have been edited for propaganda purposes. Isn’t it against the law to do that? Why don’t the copyright police put an end to such deceptions so that the public may once again be able to trust our own eyes and ears?

Bewildered Facebook User

Dear Bewildered:

It’s true: you can’t believe your eyes and ears anymore! New software tools make it easier than ever to doctor not only photos but video to make it appear that someone is ill, intoxicated, or is just saying things that the person never said. Just this week, Fox News broadcast a video of the Speaker of the House in which her speech was both slowed and its pitch increased to make it appear that she was drunk. The original video was quickly located and when played along side the altered one, the dirty trick became evident. The Speaker was not impaired. It was the truth that was impaired.

As a matter of copyright law, making such alterations is the creation of a “derivative work” and when it’s done without the authorization of the owner of the copyright in the original, it’s an infringement. The problem, however, is finding the person responsible for creating the fake. (The copyright owner could also bring suit against the organization that published the fake, but by the time a law suit makes it to court, the damage is done and everyone has moved on. In addition, proving damages is difficult, and the original of a political video may also come from a government source, and under law, the United States government does not have a copyright in works that it creates.)

The problem of deep fakes is, however, not exactly a new one. For instance, the famous Civil War photographer Alexander Gardener created some of the most famous photographs of his time by carefully staging scenes. The famous photograph of the Confederate sniper in Devil’s Den at Gettysburg was staged. The photographer and his assistant moved the body of a foot soldier and carefully placed a rifle and other items to make it appear that this dead soldier was one firing on Union troops before his demise.

Today, the technology used to create deep fakes is artificial intelligence, and it alters video, rather than black and white photos, but the aim is the same: to change what you (and the rest of the public) think about a person or an issue.  As a matter of copyright, there may not be very much that the law, which was written for an earlier age, and is slow to respond, can do about such things.

The Doc wants you to know about deep fakes, so that, like fake news, you know that you’re being fed lies by both social media and what passes for legitimate media. It’s a dangerous world out there, but as always, having many sources of information, and questioning the motives of those who want you to believe something are the best lines of defense against propaganda. What we now call “digital literacy” used to be called “good old skepticism” – and we need more of it today.

Want to create a derivative work? Have an intellectual property question? Talk to the attorneys at LW&H. They know their stuff and they’re the real thing, not some AI-created Max Headroom-esq (fake lawyer).

Until next month.

The Doc 

–Lawrence A. Husick, Esq.