The internet is replete with images of nude celebrities. Most of the available content consists of a celebrity’s face morphed onto a nude body of someone else, closely resembling the star’s figure. Deep Fake technology can make the resulting image quite convincing. The poses and sex acts in which the celebrity appears to be engaged are limited only by the creator’s imagination and budget. It is not uncommon to find realistic images of media stars engaged in explicit sexual behavior even if those celebrities have never appeared nude in the mainstream media. Websites containing such depictions have become both popular and profitable. However, this content has caused an uproar amongst celebrities and their agents. Once again, computer technology has outpaced the law, and therefore no specific set of legal principles applies to computer-morphed celebrity images. While Congress has considered several bills relating to Deep Fake technology, morphed images of adult celebrities have, thus far, not been the subject of specific state or federal legislation. Accordingly, the emerging legal question is whether celebrity fakes are protected by the First Amendment to the United States Constitution, or an illegal means of capitalizing on a celebrity’s right of publicity.
POTENTIAL CLAIMS
The creators or operators of celebrity fake sites are subject to various potential claims. The most likely causes of action are defamation, right of publicity violations, invasion of privacy claims, copyright infringement, and/or trademark infringement, dilution or disparagement. With the exception of copyright infringement, which is exclusively federal in nature, the remaining claims might be brought in either state or federal court.
A. Copyright
A copyright claim could be asserted if the celebrity fake site posts a photograph that is substantially similar to a copyrighted image, without permission of the copyright holder. Since copyright does not protect a person’s “image or likeness,” the celebrity would be an unlikely copyright claimant. The claim must be brought by the owner of the picture or video in question, such as a photographer or producer. If the bulk of a copyrighted work is used on a celebrity fake website, such that it can be labeled an infringing “derivative work,” copyright law provides powerful remedies for infringement. Under the Digital Millennium Copyright Act, (“DMCA”), the copyright owner need simply serve a DMCA Notice on the website’s host or online service provider, demanding that the content be disabled or removed immediately. If the celebrity fake image is, indeed, found to be infringing on someone’s copyright, and it is not removed promptly upon receipt of the DMCA notification, the service provider can be liable for contributory copyright infringement. Importantly, cases interpreting the DMCA have determined that the sender of a DMCA notice must consider fair use rights (discussed below) before the notice is transmitted.
If the image was timely registered with the U.S. Copyright Office, the copyright owner can also sue for infringement and seek statutory damages ranging from $750 – $30,000 per infringing image (or up to $150,000 per image in the case of willful infringement) plus attorney’s fees. If the website contains numerous images or videos, the damages can easily approach the six-figure range.
B. Trademark Infringement, Dilution, or Disparagement
A less likely claim that might be asserted is trademark infringement, dilution, or disparagement under the Lanham Act. If the celebrity uses a specific trademarked name, logo, or trade dress which appears in the computer-altered image on the celebrity fake website, a claim may be asserted for a trademark infringement. For example, if the celebrity is dressed (or partially dressed) in her trademarked line of clothing, or is holding a product he or she endorses, a trademark claim may be soon to follow. The trademark owner will inevitably argue that associating a protected trademark with adult entertainment dilutes or diminishes the mark’s value. The celebrity might also bring a claim under the Lanham Act for unfair competition or what is commonly known as “palming off.”
C. Defamation
State laws provide a remedy to those who are defamed by publication of untrue facts to third parties. Defamation laws do not only apply to the written word – video and graphic images can be the basis for a defamation action as well. For example, if a celebrity fake includes images of Brittany Spears engaging in fellatio with Justin Timberlake, and Ms. Spears can prove that such depiction is false, an action for defamation might be asserted. Numerous defenses may come into play in such instances, as discussed below, such as the fact that the image was not presented as an accurate depiction of a real event but as a “fake.” However, publishing an untrue message that the sexual activity actually occurred is defamation, and may constitute the more serious tort of defamation per se.
D. Privacy/Publicity Claims
State law also commonly provides for several types of invasion of privacy claims that could be raised by the celebrity; these include “false light” invasion of privacy (recognized in some states), unauthorized publication of private facts, and unauthorized capitalization on the celebrity’s right of publicity. Those claims center around the publication of facts, or depictions of events, that cast the celebrity in an unfavorable light, or attempt to profit on protected publicity rights. A celebrity, himself or herself, is most likely to assert those kinds of claims. All famous individuals have the right to profit from their own image, likeness, and popularity. When someone unfairly tries to capitalize on a celebrity’s image for their own gain, a claim may be generated. The First Amendment imposes certain boundaries to these sorts of claims, however. For example, news organizations are entitled to accurately report on newsworthy events involving celebrities without violating these privacy/publicity rights, even if the celebrity’s image and likeness appears in the story. What constitutes a newsworthy event remains unsettled in the courts, particularly in the current age of citizen journalists.
E. Miscellaneous State Law Claims
Each state may provide additional remedies for those injured by celebrity fake activities. Some states may provide redress through unfair trade practices legislation, false advertising laws, or through common law claims such as intentional infliction of emotional distress. The First Amendment also limits the reach of such common law claims.
DEFENSES
While celebrity fake content may generate a number of potential claims, several defenses exist that may partially or completely absolve the publisher of liability. The likelihood of success of some of these defenses is uncertain, given the lack of established precedent on these issues. One significant case discusses the types of claims and defenses that the court will entertain in connection with celebrity fake sites. The case was brought by Perfect 10, Inc., a magazine and website publisher against Cybernet Ventures, Inc., d/b/a Adult Check. Perfect 10 alleged that Adult Check profited from stolen images of celebrities appearing on certain affiliated websites. Perfect 10 sued Adult Check and various credit card processors for copyright infringement, trademark infringement, trademark dilution, wrongful use of a registered mark, violation of the right of publicity, unfair competition, false advertising, and other claims. After protracted litigation, the Ninth Circuit Court of Appeals found that the defendants were not liable for any of the claims due primarily to their attenuated relationship with the websites where the content actually appeared. However, the court did not address the liability of the actual publisher of the celebrity fake content. Therefore, many of these issues remain unsettled.
The following are some defenses that might be considered in response to celebrity fake content claims:
A. Parody
The fact that a particular work constitutes a parody of a protected work is not a defense in itself, but is one factor to be considered in determining whether the defense of “Fair Use” can be established. Fair Use is an affirmative defense to a claim alleging copyright or trademark infringement. The Fair Use defense is designed to allow someone other than the holder of the trademark or copyright to use the product, mark, or work in some way that does not legally infringe on the owner’s intellectual property. Although the general rule is that “parody” is only one factor to be considered in determining Fair Use, if a court concludes that a use is a parody, it will generally defeat a claim of intellectual property infringement or even a claimed violation of the right of publicity. Parodies receive full protection under the First Amendment even though they are designed to entertain, rather than to inform. It is also irrelevant, under the First Amendment analysis, whether the parody is for profit. One crucial factor, which the courts consider in evaluating whether an infringing use constitutes a parody, is whether there is a reasonable likelihood of confusion so that the allegedly infringing product provides an alternate means of satisfying the demand for the original product. The courts will assume that a legitimate parody does not, and is not intended to, satisfy the demand for the original product. A protected parody should point out the distinction between the original and the parody, and therefore eliminate confusion between the original product and the parody. Courts also recognized that parody, unlike satire, cannot stand on its own; identification with the object of the parody is essential. In other words, just because it is humor, does not mean it is parody. The courts used to consider how much of the original work was appropriated in determining whether a claim of parody was viable. Under the old test, a parody’s use of the original could not appropriate more than absolutely necessary to accomplish the parody’s purpose. However, in 1994, the Supreme Court reformulated that analysis and held that it is not how much of the original is taken which is determinative, but the publisher’s intent in taking it and to what use the original is put. Under current law, a successful parody defense would defeat claims for copyright and trademark infringement if it portrays the original, but also sends a message that it is not the original, and simply serves to criticize the original, thereby lessening the potential for confusion.
The seminal case recognizing the right to publish a parody involving altered images of famous individuals is Hustler Magazine v. Falwell. In that case, Hustler successfully argued that its outrageous depiction of Jerry Falwell’s first sexual experience, with his mother in an outhouse, was entitled to First Amendment protection as a parody. The court determined that no reasonable person would ever take the depiction seriously, and that even state law tort claims such as intentional infliction of emotional distress were barred by the First Amendment’s protection of free speech. More recently, several cases have recognized that parody is a defense to right of publicity and intellectual property claims. In Cardtoons, L.C. v. Major League Baseball Players Association, a federal appeals court held that baseball cards featuring caricatures of major league baseball players did not infringe upon the player’s right of publicity since the cards were a legitimate parody, and therefore entitled to full First Amendment protection as social commentary on public figures engaged in a commercial enterprise. Another court decision recognizing the parody defense is Mattel, Inc. v. Walking Mountain Productions, where the court held that an artist could appropriate entire Barbie Dolls and alter them in order to comment or criticize the “Barbie ideal” and take photographs of the altered dolls without infringing on Mattel’s copyright, trademark, or trade dress. Furthermore, simple photographs of the altered dolls did not satisfy the market demand for the original doll, thereby precluding any likelihood of confusion between the original and the parody. Other courts have held that critics can use copyright-protected elements of an original work to create a new work that criticizes or comments on the original without of being guilty of intellectual property infringement. Although untested, the defense of parody may apply to a celebrity fake site portrayed in a sufficiently satirical manner.
B. Newsworthiness
Another defense to claims of infringement, required by the First Amendment, is the defense of newsworthiness. Courts have recognized that limited use of protected images or publicity rights is necessary in order to accurately report on newsworthy events by legitimate news organizations. Even in California, which provides strong protections for the right of publicity, the courts have held that the First Amendment provides a defense to such claims based on the public’s right to know, and the freedom of the press to tell it. While it may be difficult to determine what events in a celebrity’s sex life are newsworthy, and therefore covered by this defense, it is clear that depictions of fictitious events such as computer-generated images of celebrities that never existed in the real world would not likely be protected by claims of newsworthiness. The First Amendment defense can be overcome where a defendant uses a celebrity’s name or likeness in a knowingly false manner to increase sales of a publication. In order for this defense to be successful, the celebrity content would need to be “real” images of arguably newsworthy events. Even then, some courts may inquire into the legitimacy of the website publication as a news organization, and its real intent in publishing the images. This could pose a problem for sites that focus on adult entertainment.
C. Transformative Use
Another defense that might be raised in response to claims relating to celebrity fakes is transformative fair use. Courts have recognized that a celebrity’s right of publicity can be overcome if the use contains significant transformative elements or the value of the work does not derive primarily from the celebrity’s fame. This type of Fair Use is not limited to parody (as discussed above), but can include fictionalized portrayal, heavy-handed lampooning, and subtle social criticism. Importantly, even vulgar forms of expression qualify for this defense under the First Amendment. This defense is very fact-intensive, but it is clear that simply merchandising a celebrity’s image without consent does not amount to transformative use.
D. Truth
Truth is always a defense to libel and slander claims. In other words, defamation claims only apply to false statements of fact that negatively impact an individual’s reputation. If a website operator faced a defamation claim from a celebrity based on computer-altered images, “Truth” would be a difficult defense to establish since the images do not depict an accurate event. Put in other words, creating fake images which depict celebrities in poses or circumstances that never occurred may form the basis for a defamation claim, rendering the defense of truth impossible to establish. On the other hand, if the celebrity was actually captured in a public place posing nude, for example, and a content creator chose to post a photograph of such public pose, “Truth” may provide a defense to any defamation claim asserted in such circumstance. But the Truth defense does not apply to other potential claims, such as violation of the right of publicity or invasion of privacy.
F. Section 230 Immunity
Under Section 230 of the Communications Decency Act, the provider of an interactive computer service is not liable for content posted by third party users. This immunity has been construed broadly by the courts to protect online platform operators. Therefore, if the celebrity content is posted by a user of a website publisher, as opposed to the publisher itself, the publisher is immune to claims for defamation and invasion of privacy. There are exceptions to this grant of immunity, however. Platform operators can still be sued for intellectual property violations. If the operator complies with all the requirements for DMCA safe harbor under 17 U.S.C. § 512, it can avoid exposure for copyright infringement claims. That leaves potential liability for trademark infringement or unfair competition. In some states, where the right of publicity is treated as an intellectual property claim, the operator may face potential consequences under that theory as well. Notably, Section 230 immunity does not prohibit enforcement of federal criminal law and makes some exceptions for claims associated with prostitution and sex trafficking. While federal law provides substantial protections for online intermediaries, this protection is not all-encompassing.
What Does This All Mean?
A publisher of celebrity fake images must tolerate a significant level of operational risk. The site operator may face publicity claims from the celebrities, or their representatives, along with intellectual property claims from photographers or trademark holders. If the website clearly discloses that the photographs are not real, the likelihood of the celebrity prevailing on a defamation or false light claim is reduced. That is because the celebrity would need to prove that the site operator intended to make false statements of fact about the celebrity or portray the celebrity in a way that is false, while representing the depiction as true. A celebrity fake site is just that – fake. The publisher may have a difficult time convincing a judge or jury that the website portrayed any real facts or circumstances relating to the celebrity’s sex life or real activities.
Depending on how similar the fake image looks to a copyrighted image, copyright liability may be imposed under a derivative work theory. If the fake image is readily distinguishable from the original image and communicates an entirely different form of expression or idea from the original, the publisher might defend on the grounds of transformative use. If the essence of the website is satirical, critical, or can otherwise legitimately be labeled a parody of the sex life of the celebrity, Parody may provide a defense. On the other hand, a celebrity fake website containing nothing but images of realistic looking sex acts by celebrities may be difficult to defend as a Parody. There is no bright line distinction between what is satirical and what is an infringing work. Therefore, publication of this content comes with inherent risk. Courts will look at the overall intent and portrayal of the fake images to determine whether the Fair Use defense is applicable. Parody and transformative use defenses are strongly ingrained in intellectual property jurisprudence, since they serve important First Amendment interests.
Finally, given the increased popularity of user-generated content sites, Section 230 presents a significant obstacle for claims against the operators of such sites.
As celebrity content continues to grow in popularity, these issues will wind their way through the court system and ultimately be resolved. Until then, legal guidance is essential to assist in navigating these complex issues.
Lawrence G. Walters, Esquire is a partner with the law firm Walters Law Group. He represents clients involved in all aspects of adult media. Nothing contained in this article is intended as legal advice.