With questionable copyright claim, Jay-Z orders deepfake parodies off YouTube
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YouTube took these videos down based on a copyright (DMCA?) claim. Which of course isn't a court ruling or anything.
At the same time, no court would ever uphold this removal, because it obviously falls under "parody" which is protected. (Otherwise shows like Saturday Night Live couldn't even exist.)
After all, the end result is no different from a really good vocal impersonator. In fact, a really good impersonator will definitely do better.
It's disappointing that Jay-Z (or more likely some lawyer working for him) is abusing YouTube's takedown mechanism this way.
But at the same time, I can see how this could seem particularly scary for a performer. After all, if you've spent decades creating a recognizable profitable persona... the idea that anybody with a personal computer can flood YouTube with fake lyrics that aren't yours could feel terrifyingly like losing control of everything you've built.
What if some really nasty stuff went viral and became as associated with Jay-Z as the rest of his stuff? Stuff that did serious damage to his brand, which "nobody could unhear"?
I genuinely wonder if deepfake technology will actually result in new copyright restriction law. I.e. to make it a crime to produce unlicensed deepfakes that are genuinely indistinguishable to the average person, regardless of whether they're parody or not. (While "bad" parodies like SNL will continue to be protected as always.)
I kind of feel like that's going to have to be the outcome at some point in the near future -- in fact, as soon as really convincing yet nasty deepfakes of senators and representatives start making the rounds and spreading on Facebook, I suspect a new law will get passed incredibly quickly.
No. This isn't a new area of law. Legal "Deepfakes" have been around a long while. There is even a supreme court case covering the matter: Falwell, 1988. That involved a fake interview with Billy Graham, using his image and putting words in his mouth. If the 1988 supreme court wouldn't protect the reputation of a national religious leader, they aren't going to do so for politicians today.
https://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell
This is from the movie, but it is accurate to what was said. This interaction really did change supreme court procedure, introducing a far less formal back-and-forth oral argument. Jokes were almost unheard of before this case.
https://www.youtube.com/watch?v=MeTuNES82O0
The trial court argument: https://www.youtube.com/watch?v=TsvB61mDoG8
> In an 8–0 decision, the Court ruled in favor of Hustler magazine, holding that a parody ad published in the magazine depicting televangelist and political commentator Jerry Falwell Sr. as an incestuous drunk, was protected speech since Falwell was a public figure and the parody could not have been reasonably considered believable.
The post you're replying to explicitly talks about convincing deepfakes. Also, Falwell was a televangelist and political commentator, not a senator. So I don't think this court case is a good example.
[1]: https://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell
Well that gave me a good chuckle! The fact that a supreme judge is appointed by the sitting president and confirmed by the Senate means that they can push whatever dogma the ruling party has.
Ugh, that is the type of free-speech infringement that people should be worried about, not all this stuff about how YouTube taking down videos is government censorship.
A really good deepfake is still fiction. Really good writing is fiction. Really poorly-written fake "news" blogs "reporting" lies as truth is fiction. These are all allowed to exist (in the USA) because of the 1st Amendment. It is the price that we pay for living in a free society, that the government cannot tell you "your fiction is not allowed."
Textual accounts of real events, and lies about real events, have existed for ages. Sometimes the lies are more convincing than the truth. Audio recording and doctored audio has existed for ages. Photography and doctored photos have existed for ages. Video recording and doctored video has existed for ages. We'll survive another flavor of doctoring just fine without the government's help.
A writer who makes a book that is word-for-word the same as another book is infringement.
Making a pixel-perfect copy of a photo, from scratch, is an infringement.
Copying a song, perfectly, is infringement.
Whether something is a 'lie or the truth' - or 'which one is more convincing' doesn't really matter.
With 'deepfakes' we're going to have to get serious because people will literally be putting words in other people's mouths, creating fake representations of other people, it's going to cause problems. This issue may not actually fall under copyright.
I'm specifically addressing the notion that the government would carve out a free-speech exception for "deepfakes", like "deep fakes of Politicians / Celebrities are illegal." Which would be clearly unconstitutional, because you are forbidding creation of a creative, expressive work.
Whether the works that you are free to create, regardless of format (photoshopped image, deepfaked video), violate some other law - libel/slander - is separate as well. Yes, they certainly could, just like a photoshopped image today could be libelous.
Not if it’s libel. And a convincing deepfake that harms someone’s reputation could easily be interpreted as an act of defamation by the creator, which would mean it’s not protected speech.
There's no reason to think libel laws wouldn't apply to deep fakes the same way the apply to a photoshopped image, or a textual lie.
We (ok, mostly those in power or who want to be) constantly feed each other the most manipulative, self interested lies for personal/organizational benefit, 24/7/365.
Life has always revolved around either being manipulated, or knowing that that's the point of what you hear, and putting in the effort to find out more before forming an opinion.
Hence investigative journalists, etc etc.
> God help us all...
Umm, we've all been deceived about almost everything since forever. There's no sudden worsening here, just a newer level of verification required.
One set of shared delusions is not the same as an anarchy of delusions.
Wars are started based on disinformation, black propaganda and/or false flags anyway.[0] Nobody (at least who wasn't already spoiling for a fight) is going to start a war just because of a deepfake posted to Youtube.
> What will the third world victims of some hate story stirred up by AI doctored footage care about first amendment protections in America ?
This video was taken down, rightly or wrongly, due to American law. It's quite likely deepfakes are actually 'more legal' in some countries outside the US, due to differences in legislation.
For example, depending on political/sexual content, an Iranian or North Korean video host may be less interested in taking down a deepfake of Jay-Z than Youtube.
> Deepfakes are a clear and present existential danger to ourselves and others
The real danger with deepfakes (and other technology that the rich and powerful don't like, such as encryption) is overreaction and people tripping over themselves to call for even more limits on their own free expression.
> God help us all once we can't even believe what we see anymore.
And God help us all when we have no way to speak out any more. As shown in the link below, we never could believe what we see.
[0] https://www.globalresearch.ca/the-ever-growing-list-of-admit...
You mean like scenes shot with actors to imply certain events happening? ex. scenes protests in some city when it's actually just a bunch of actors making it look like a protest is happening?
The harder lesson is learning to catch yourself and see past it before getting manipulated.
The hardest lesson is not knee jerking and giving those who want to control you the tools to limit everyone's speech to just approved material. (China, Iran, Vietnam, North Korea, these ring a bell? VERY slippery slope.)
And once elected, they'll be stuck doing it, or the news networks will decide that it did happen, and no one will be able to figure out that it actually was not. At that point, is there any difference?
You don't need new law. It's already against the law to copy someone's appearance in an attempt to impersonate them other than fair use.
> anyone watching these videos can see that it is NOT Jay Z in the video.
I'm not that familiar with JayZ and it's more than enough that I would have been convinced and not given it a second thought. It's not obviously parody and the only tip off it was even fake was "(speech synthesis)" in the title.
Some form of personality rights make sense to me, as otherwise Mickey Mouse would enjoy more legal protection than you and I. And obviously it's not an absolute right - you can't sue red light cameras for photographing you.
There's also the question of whether a neural net trained on a copyrighted image or video is a derivative work - in contrast to a 3D model made by an artist who merely references copyrighted images or videos.
Not a lawyer, but...
It doesn't seem like parody to me. It also doesn't seem like it has much of anything to do with copyright at all - one of the videos taken down was reportedly a performance of an excerpt from Hamlet, which is definitely in the public domain.
On the other hand it does seem like a possible violation of trademark law, but I have no idea how that would play out in court. Which is confusing, because I thought the DMCA only applied to copyright (it's the Digital Millennium _Copyright_ Act, after all) but perhaps I'm wrong and it includes provisions about trademark as well?
As far as I know, a legally enforceable "DMCA takedown" can only be about copyright infringement. However, YouTube is under no obligation to not honor takedowns that aren't legally binding.
I couldn't find the reference offhand but I've read that YouTube has no ability to adjudicate the validity of a DMCA takedown request at all. They must responed as proscribed by the DMCA.
Which makes sense because once the DMCA is involved it's ultimately a legal dispute between the person that uploaded the video and the person that claims to own the copyright. And that kind of dispute is something only the courts can decide.
If Jay-Z was not satisfied with the process, he could submit a DMCA request and YouTube would have to follow the DMCA requirements in processing it, but the current process is better for both of them (not for the posters of the contested content, though).
That's what's ripe for abuse. Why isn't it a fiduciary responsibility to their "partners" to make sure they aren't needlessly deprived of revenue, in situations where a 1st year law student could tell them there isn't a legal basis for the takedown?
The legal basis for the takedown is the language in the Youtube terms and conditions that says that Youtube can take down the content at their discretion. It does not matter if that decision is caused by a non-binding takedown request of a self-asserted copyright owner, or by a drunken manager randomly clicking to remove videos, the legal arrangement between Youtube and their "partners" does not assume any fiduciary responsibility to ensure that your videos will be kept unless absoltely needed, and no current law is forcing them to assume that responsibility.
I mean, the statement "why isn't it a fiduciary responsibility to their "partners" to make sure they aren't needlessly deprived of revenue," seems very weird from the perspective of law - why would there be such a responsibility? Do you have some law in mind that would cause it? E.g. CEOs have fiduciary responsibility to shareholders, stockbrokers have fiduciary responsibility to their clients due to specific laws, but in general there is no fiduciary responsibility between parties in a contract, the parties can be 'hostile' towards each other as much as they want.
The default legal position is that every private actor is free to act as they want for their own benefit as long as they are not breaking any laws or contracts. If I cause you some losses by doing things I am entitled to do, there's no possible liability - in order to claim damages, I have to have done something wrong. So in the absence of a specific law or contract requiring Amazon to ensure that their "partners" aren't needlessly deprived of revenue, that lost revenue is not Amazon's problem, and they're entitled to (for example) intentionally cause partners to lose that revenue if it benefits Amazon in some way and there's no statute or contract that restricts Amazon from doing so.
If YouTube stops taking down these videos based on this "fiduciary duty" and they get sued again, will this union pay for the legal fees and potential damages? Yeah, not likely.
But no, Jay-Z should not be able to take down parodies on YouTube that make it clear to the viewer that they are using deepfakes.
https://www.youtube.com/watch?v=iyemXtkB-xk
https://www.youtube.com/watch?v=m7u-y9oqUSw
was this an automatic takedown and maybe they have meanwhile been made available again?
You mean enforce? Youtube can remove whatever they want; they don't need to be in the right about it.
This is a key problem with DMCA, it shifts all the risk/cost of deciding cases onto platforms, their only logical response is to take things down, so everything gets taken down.
But YouTube doesn't follow the DMCA process at all, they have their own procedure, with no such recourse.
So that's a huge incentive to just take everything down.
Effectively the whole point of DCMA (this part at least) is to pierce the common carrier protection platforms have.
Am I wrong? If so, any idea what Youtube don't just let people counterclaim and leave everyone else to argue it out in court?
> any idea what Youtube don't just let people counterclaim and leave everyone else to argue it out in court?
Essentially YouTube in the pre-Google days was purposefully uploading infringing videos, and Viacom (and others) used that to sue them and under the settlement agreement forced YouTube to build the Content-ID system and have a more lax takedown system.
Really? I thought if it was "so good" that people don't realize it's a parody, it loses the relevant protections against defamation and infringement on likeness rights/image/trademark/whatever.
If it was a [manual] Content ID claim, there's no legal reason YT has to remove the video; the content ID system exists to provide an (arguably abusable) way for YT to scan every piece of uploaded content for copyrighted material.
If it was a DMCA, YouTube has to remove the video to maintain impunity.
But, as stated in a related comment, this is new territory in the eyes of the law. Maybe this video is a parody, but if it's not clear about that it would be clearly illegal. Even an extremely good impersonator can be sued if they try to actually pass themselves off as someone else.
automatic Turing test pass
https://en.wikipedia.org/wiki/Midler_v._Ford_Motor_Co.
"The appellate court ruled that the voice of someone famous as a singer is distinctive to their person and image and therefore, as a part of their identity, it is unlawful to imitate their voice without express consent and approval. The appellate court reversed the district courts decision and ruled in favor of Midler, indicating her voice was protected against unauthorized use.[4][5]"
I was actually a little surprised. And this is different, but I think that they're imitating a famous voice (as opposed to my voice...) means they become a target.
The fact you can fake anyone saying anything is little amazing. though there are people who can do it quite well:
https://en.wikipedia.org/wiki/Josh_Robert_Thompson
Thompson's Arnold Schwarzenegger impression first gained national attention during the California gubernatorial recall election of 2003. Posing as Schwarzenegger, Thompson phoned in to Fox News Channel's morning program, Fox & Friends, fooling the hosts into believing (at least for a short while) that he was, in fact, Schwarzenegger.[4]
Turns out Apple engaged in discussions to license (or maybe commissioning) Britto's Art, but then Apple turned around and essentially just "knocked off" of Britto's style. They were looking to bring me in to file and handle lawsuit for copyright infringement...I declined the offer and they filed suit (I believe it ended up with a settlement).
It is easy to have strong opinions one way or another about copyright laws, but feelings of law aside, my opinion was that it was in very poor taste for a company like Apple to court an Artist like Britto and then big time him the way they did...sure art and artistic styles are a dime a dozen, but they could have used any art for their campaign, they didn't have to mimic/copy his style (I can't fathom what would even make them do that...ego I suppose). For those who are curious here is a link to an article that shows Apple's alleged infringing art:
https://www.miamiherald.com/entertainment/visual-arts/articl...
To address some of the other responses (common myths):
1. It does not require the exchange of $1 for the attorney-client privilege to apply. For example attorney-client privilege will generally apply to free consultations and it will equally apply in the case of pro bono (free) legal services from groups such as ACLU or EFF to their clients.
2. Attorney-client privilege does not require an agreement for representation to apply (again think of a consultation before an agreement to represent where the privilege applies).
As far as a "rule of thumb" a decent summary by the ABA is:
"Nevertheless, there are some rules that generally apply to most, if not all, jurisdictions. For attorney-client privilege to apply to a communication, the general rules require that: (1) the communication be between a client and an attorney (i.e., an individual having a law degree and bar membership, and acting as an attorney for the client) or an agent of an attorney (e.g., a tax accountant, a patent agent, a forensic investigator, a technical analyst, or an expert); (2) the communication be made by the client and contain confidential information; (3) the communication be made outside the presence of a nonprivileged third party; (4) the communication be made for the purpose of securing legal advice; and (5) the privilege has not otherwise been waived. Privileged communications can be written or oral, but only communications between or among “privileged” persons are protected.
https://www.nolo.com/legal-encyclopedia/does-the-attorney-cl...
How do you even begin to quantify the 'likeness' of one piece of art to another though? In this case it sounds easy enough since they consulted with the artist beforehand, but what if they ripped off his style without ever talking to him, how do you prove it's a copyright infringement?
As they say when the facts are not on your side argue the law, and when the law is not on your side argue the facts. I tend to agree the facts of good faith conversations/business dealings helps if not makes the entire case possible. Even if there was an "obvious rip off" the artist would likely not take on Apple if it were not for the prior good faith discussions between the Artist and Apple.
>How do you even begin to quantify the 'likeness' of one piece of art to another though?
It is a good question...Britto has a very recognizable style that is some sense is also somewhat generic (my opinion only, I am far from an art expert). Copyright/Trademark infringement cases typically come down to questions of fact and the ultimate finder of fact (jury) which is likely why fewer than 10% of cases would go that far but rather parties will elect to settle.
> We need not and do not go so far as to hold that every imitation of a voice to advertise merchandise is actionable. We hold only that when a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California.
1. It's parody. Parody has specific statutory protection.
2. It's clearly labelled as speech synthesis.
3. It doesn't stand in for any of the original works. The market for deep fakes is much different than that for songs or presidential speeches.
It's really not clear to me. This page cites a case where someone imitated Dr Seuss' literary voice and lost.
It's one thing to impersonate someone to make fun of them, but he's not picking texts for them that way. A Bush impersonator reading the phone book isn't obviously parodying Bush unless he starts throwing in comedy Bushisms or exaggerating the voice for effect. Some Elvis impersonators are parodying Elvis but a lot are just doing a straight recapitulation of his look and voice.
IANAL but I think the argument can be made that YT are the sellers here and they are protected by the DMCA
‘In order to sell’ also may not cover all business transactions if they are not the primary purpose, or at least that is what the defense will be partly based on. In other words, just because a video is monetized does not necessarily mean it falls under this ruling.
Isn't that already covered by the fair use doctrine though? It wouldn't be a matter of copyright to begin with in those other cases.
The ford case seemed to be ford trying to get around Midler saying no. Its clear they wanted to imitate her for the purpose of selling their cars. The current case is a mix of satire and people playing around with new technologies (with youtube advertising money being incidental).
If anything seems more like a personality rights issue than a copyright issue.
IANAL.
If you heard an Elvis song in the background of an advertisement, would you assume it is actually Elvis? Probably, unless the ad was featuring impersonators.
If an Elvis impersonator started to become famous or successful and popular, you can bet the EP estate would be in touch.
But I'm wondering who Dread Zeppelin pays.... (a mash up of Elvis and Led Zeppelin with a reggae beat, which oddly works better than you would expect.. for a little while)
It depends upon how you do it.
If you cover the song, then that's one copyright.
However, if you hire a bunch of people because they actually look and sound like the original band, that's a completely different copyright.
Whereas Roc Nation is making a claim that the videos infringe on Jay Z’s copyrights, as well as another claim that they impersonate him without permission.
In the Midler vs Ford case, Ford had already secured permission from the copyright holder for the performance.
It’s quite a different case.
So it's illegal to imitate a famous person, but not a regular Joe?
We certainly are all equal, except those who are more equal of course.
The fact that they're famous is really just a tautology. Voices that make money are generally more famous than ones nobody recognizes.
We'll have to get a real (i.e. not me commenting on HN) legal opinion should we get a take down request, but prima facie I don't see why these would be illegal.
(If they are illegal and we are notified, we would put them on the company maintained blacklist, as we cannot remove anything from the network itself.)
Edit: I wrote a rap on our perspective.
If you're having deep fake problems / I feel bad for you son
We got 99 deep fakes / And Jay-Z ain't taking down one
Everyone loves Napster as a history lesson. But it is doubtful that anyone would want to live it.
Your position seems to be inviting all of the controversy and lawsuits for little-to-no payoff.
That is not the same thing as "there are no ethical issues". I'm sure some people, especially the celebrities portrayed, would feel there are the same ethical issues in all cases, and any difference is merely one of degree, not kind.
On the pragmatic ones:
- If the lawsuits ever become unbearable we can always choose to simply stop existing. One beautiful part of LBRY is that it does not depend on the company to work.
- It's not so much that we want to be thought of as the deep fake place, so much as we want to be thought of as a place for people who want to make their own choices. I think supporting this supports that goal.
It used to be that jocks beating up nerds was an universally applauded activity, it's now rightfully seen as stupid and evil. The same will have to happen with people abusing their digital prowess against others, or the former will become untenable.
you can rap in tweets / but you don't want street / clown on us all / get your feet in concrete
I hope something rises up and kills youtube with it's censorship. There was metacafe, then youtube, next: ???
Found this: https://lbry.tech/overview
>To create a market for accessing and publishing information1 that is global2, decentralized3, robust4, optimal5 and complete6.
Hell yes, do it!
Edit: Found the subreddit for this project, and they say youtube banned these videos? https://lbry.tv/Dr.-Erickson-COVID-19-Briefing:e1 - good job guys, the gatekeeping period of the internet 2007 to 2021 will be looked back on as dark ages.
I’m not so sure that’s a stable basis given a lot of laws celebrities have gotten passed protecting control of their likeness.
This is a bit of a “I’m doing it on a computer so it’s different!” kind of thing that won’t necessarily legally fly.
Challenging the idea that someone can’t control the reproduction of their likeness full stop is settled in the general sense in law. Context shifting how the reproduction happens isn’t really much a difference maker.
No. It's based on people desiring a publishing platform that does not allow interference from intermediaries ala YouTube, Facebook, or Amazon.
> Challenging the idea that someone can’t control the reproduction of their likeness full stop is settled in the general sense in law.
You're commenting on an article that says this content is probably legal. If you think it's not, it'd probably make more sense to comment on the top-level thread.
Abuse potential notwithstanding, and ignoring the complete distortion of "reality" coming soon, I'm extremely excited for this technology to become more mainstream. Being able to edit audio and video, like you edit a word document. Record a conversation for a couple hours, compile the transcript, and synthesize it into something tight, all without the need for a traditional video editor. Voice synthesis for words that werent spoken, or misspoken, frame interpolation and morphing to prevent the jaggy youtube cutting effect.
I want a YT speed setting for “constant WPM” based on their autocaption timestamp metadata.
You could build a site that inputs YouTube video URLs + WPM and then outputs the video playing at the desired WPM.
how do they check which voice is your own?
I wonder if they also have signatures for famous voices they can blacklist.
Going up against a living performer whose main asset is their vocal style makes a weaker case. Living people have stronger publicity rights than the estates of dead ones. This could result in a decision which expands the scope of copyright. One of those weird copyright decisions, like the one where Owens-Corning trademarked PINK, as a color, for insulation. Coloring insulation was so unusual that it was held to be a valid trademark. Now there are other copyright on colors. Bad cases make bad law.
This thing has been botched so badly that one wonders if it's a fake case from the music industry to get a losing decision.
Trademarks and copyright are NOT the same thing. That trademark would only give them rights to the branding PINK in the context of insulation. Copyright is more expansive - and I think you should be more worried about copyright than trademark.
[1] https://www.owenscorning.com/copyright [2] https://youtu.be/C5uM-QwKgW4
That doesn't really matter. Anyone who held any piece of the rights could submit to YouTube for a take down, and YouTube will do it. They don't go very far in trying to figure out the legitimacy of a claim, and any rights holder will be good enough for them.
, but often some large corporations
if the person is still alive then people might believe it's an original and the impersonated can legitimately claim that the fake is profiting from that mistaken identity.
A deepfake Elvis video of a song that he didn't write would be subject to copyright by the original author of the song and to trademark by the owner of Elvis's likeness. However, it seems plausible that such a trademark claim might fail because (among other things) it should be apparent to a viewer that it isn't actually Elvis.
The courts or the legislature are going to have to address how your rights to your own image being synthesized like this, but again, I have no problem with someone retaining the same sorts of original ownership rights when it comes to derivative works that use data collected from them, beyond just who owns the copyright to the works in the dataset. (voice, video, images, etc.)
Imagine if that were true - a human artist couldn't create anything, because everything in the world around them is their training set!
I think it has to be a likeness test - if an average person would think its a real Jay-Z music video, then it's a derivative work. Don't muddy it with the implementation details of how it was made.
I suspect that would be an absolutely terrible standard in practice. I realize you specifically have deepfakes in mind, but consider that in more general terms those are outputs from a machine learning algorithm. Such outputs will inevitably fall on a continuum regarding the degree to which they resemble a distinctive art style, voice, personality, or other metric.
It seems unreasonable to me that it should be illegal to use arbitrary input data to train a NLP translation model or an image classifier. Farther along the spectrum of outputs, style transfer GANs don't seem like they should be a violation of the law. Should TWDNE really be against the law to host? (https://www.thiswaifudoesnotexist.net/) According to your proposed standard, it would be.
If this was a parody, that could probably be argued very differently. Not sure where this particular case falls legally.
I don't agree with if you don't own the copyright you are infringing by publishing something the model produces. It should be tied back to the likeness of the original source.
The argument would be - if I never used any copyrighted JayZ sources (talking in a public setting, not giving a speech) and produced a deepfake, provably so, that would prevent me from being sued by JayZ & co?
Ideally no, because I'm still using his likeness to promote something.
Google is a business and therefore the calculations that go into deciding who to side with in these kinds of disputes doesn't _only_ factor in the law, but also the impact on the business.
In this case, they predictably sided with a fellow corporate entity, like they almost always do. There is no business reason for them to go to bat for a small non-commercial uploader, they're better off just removing the video when a deep-pocketed company complains about it.
Second though, parody (and Fair Use) is about copyright and trademark, protecting use of such material for commentary and so on. But use of someone's likeness directly, particularly for someone famous, in order to produce new works is arguably something new that hasn't really been dealt with yet. Jay-Z making a copyright claim definitely seems dubious, and perhaps was done simply for convenience rather then legal strength, copyright disputes are the form in which most take down systems work. I can see arguments both ways for whether copyright would apply at all: in favor, the argument would be that the ML models are being trained via copyrighted works, which in turn makes them derivatives. On the other hand, facts are not copyrightable (in the USA) regardless of effort or source. A counter argument would be that the ML models are merely deriving facts about a person's vocal cord, facial structures and other physical natural characteristics, which then create a factual physical model which can be utilized to produce new works. In that case, all these new deep fakes would be their own brand new copyright (and potentially the ML models themselves not copyrightable). That'd be an interesting legal argument to see hashed out.
But even if they're new copyrights, right to voice & likeness are issues in some jurisdictions and certainly could be argued should be more so as technology makes this easier. I think factors around threat to reputation and so on also are raised in new ways with deep fakes vs remixing and adding commentary to real, existing works (which can in turn be referenced by anyone who sees the parody). Even if there is a disclaimer on the original deep fake, as a de novo work which itself might get spread around without context it's at least different then what we've had until now.
This is a misnomer.
Fair use is an authorized use, and consequently is “distinct from affirmative defenses where a use infringes a copyright, but there is no liability due to a valid excuse, e.g., misuse of a copyright.” Id. Lenz, 815 F.3d at 1152
No, I don't think so. Fair Use isn't merely a matter of court precedent, it specifically is in the Copyright Act (17 U.S. Code § 107 [1]), the language of which indicates it's on the plaintiff, and subsequent case law does seem to have affirmed that unless you have something further to cite? What you cited right there was Lenz v. Universal Music Corp, a 9th Circuit decision about abuse of DMCA takedowns, and in turn considering the "under penalty of perjury" aspect of the DMCA not "Fair Use" as a defense in general. The quote you gave was in the context of §512, Judge Tallman wrote that §512 "unambiguously contemplates fair use as a use authorized by the law". But again that's specific to the DMCA, and even there while the 9th seemed to want to try stemming abuse a bit, they only required the plaintiff to show a purely subjective lack of belief in infringement. Which could be without any real consideration of fair use factors at all. As well as being circuit only, analysis at the time indicated that if anything it might encourage copyright holders specifically to do as little as possible to consider fair use. Lenz did appeal to SCOTUS on that question but certiorari was not granted. Harvard Law had a fairly in-depth looking analysis [2].
In contrast for the 9th Circuit specifically in Perfect 10 v. Amazon/A9.com/Google [3] they explicitly covered Fair Use as an affirmative defense where the burden was on the plaintiffs:
>C. Fair Use Defense
>Because Perfect 10 has succeeded in showing it would prevail in its prima facie case that Google’s thumbnail images infringe Perfect 10’s display rights, the burden shifts to Google to show that it will likely succeed in establishing an affirmative defense. Google contends that its use of thumbnails is a fair use of the images and therefore does not constitute an infringement of Perfect 10’s copyright. See 17 U.S.C. § 107.
Additionally, I can find modern SCOTUS opinions such as in Campbell v. Acuff-Rose Music which support Fair Use as an affirmative defense:
>The fair use factors thus reinforce the importance of keeping the definition of parody within proper limits. More than arguable parodic content should be required to deem a would-be parody a fair use. Fair use is an affirmative defense, so doubts about whether a given use is fair should not be resolved in favor of the self-proclaimed parodist.
It'd be nice if plaintiffs were required to demonstrate as part of a suit that there was not a fair use defense for the defendants, but I really don't think that's the case nationally right now.
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1: https://www.law.cornell.edu/uscode/text/17/107
2: https://harvardlawreview.org/2016/06/lenz-v-universal-music-...
3: http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/06...
I agree that Campbell v. Acuff-Rose Music supports it as an affirmative defense, but it is not the most modern case law even though it is the only modern supreme court case. Mattel v Walking Mountain Productions in the 2nd did not use fair use as an affirmative defense. Cariou v Prince, also in the 9th and denied certiorari is a modern case that did not depend on fair use as an affirmative defense. In the appeal they did question whether fair use is an affirmative defense specifically.
Would you say that congress intended fair use to be an affirmative defense?
"(Technically, a parodist does not need permission, but it is a legal gray area, and Weird Al prefers to have every artist in on the joke.)" https://www.nytimes.com/2020/04/09/magazine/weird-al-yankovi...
edit: the tricky pit is defining parody.
Weird Al's preferences don't add any strength [evidence] to any argument regarding the legality.
"Party in the CIA" is just "Party in the USA" with different Lyrics, it's not protected, just like most covers aren't. "Smells like Nirvana" is, because it directly references and parodies how the singer in the song is barely understandable.
It's interesting to read about the trouble Penny Arcade had https://whatever.scalzi.com/2003/04/25/strawberry-shortcake-...
> While Blunt himself had no issues with Yankovic recording the parody, Blunt's record label Atlantic did; they forbade Yankovic from commercially releasing the song at the last minute. Yankovic eventually released the song online as a veritable free single; furthermore, in music videos and during live performances, Yankovic has made reference to his dispute with Atlantic. Since the initial debacle in 2006, Yankovic has occasionally reached out to Blunt and his label to see if he can release the song on compilations. However, each time that he has approached Atlantic Records, he has been denied permission.
Andeepfaked audiobook of a famous person reading a Brothers Grimm children's story is not obviously parody, and Jay-Z has a very well-known voice, and well known voices sell audiobooks nowadays. Just because you give it out for free doesn't make it fair use, either.
Second- no, parody is not explicitly excluded. It's one of several factors used to determine "fair use". Just because something is a parody doesn't mean it's automatically fair use, and the only way to get an explicit determination is to fight it in court.
I've been thinking about the deepfakes as a kind of computational thinking aid. We can all simulate reading text from the voice of random celebrities in our mind's eye. How different is the ability to bring that imagination into reality?
We should expect living actors to be signing away their likenesses for when they are dead.
On the other hand, it seems like it might well be an infringement of his likeness (ie a trademark violation). I'm not sure about the nuances surrounding trademark law though - does it have to make money, do intentions matter, how obvious does it need to be that this is an impersonation, etc.
However I’m not sure if YT has a separate DMCA process for copyright vs. trademark, or if they or people writing about this are just too lazy or uninformed to make the distinction.
This would be similar to the Google Books scanning issue. Their original plan was to scan all the books in the world so users could search them. Though Google did provide extended samples in the search results, the core issue was the scanning, which was literally a copy of the books into Google's database without permission. This was considered infringement. [1]
Where the original sound comes from and who owns the copyright for that, I don't know. Maybe the person used CNN videos, so Time Warner should be involved as well.
1. https://www.wikipedia.org/wiki/Authors_Guild,_Inc._v._Google....
Sort of like keybase but from the government.
Because deepfakes should not be under assult for being parody. Instead artists should be able to verify their own works in a secure manner.
Some countries have already started with this, mostly in the EU.
So I get where he's coming from. If I heard this version first I would have thought it was actually Jay-Z. The naked recording has all artifices of AI generated voice but mixed into a composition they are gone to my ear.
And also there are a few moments that are surreal. A dragged out s at the end of a phrase. Change of flow from smooth to a fast staccato. Fucking the inflection was near perfect. There is something to this AI stuff.
I think YT may not have to do it legally, but they may still do it to keep money happy.
It's ok to fake stuff, but it should be clear that you are doing so.
We already have fake cars in advertising, fake food on menus, fake news, fake expert advices... I really don't want to add perfect impersonification to the list.
The Obama and Trump verses also have moments that sound uncannily realistic.
Consider a situation down the line where your phone can do this in real time, and at a quality that is hard for the untrained ear to distinguish from the genuine article.
It's not at all clear to me what the right thing to do here.
Doing things computationally allows a scale that humans alone can't achieve, and as you said that may make all the difference.
Thanks for bringing my attention to this Jay-Z!
My opinion is that state actors can already do this. If we train the public that "photoshop for audio and video" is a thing, then they'll learn to be skeptical.