David Guetta’s Deep Fake - illegal or just cause for concern?
Over the past couple of years, we have seen a rise in the use and exploitation of ‘deepfakes’, ‘shallow fakes’, ‘cheap fakes’, the ‘Metaverse’, ‘web 3’ and ‘Avatars’. Eminem and Snoop Dogg’s 2022 MTV Music Video Awards performance was spliced between live and ‘Metaverse’ appearances. The Metaverse aspect of the performance included Eminem’s and Snoop’s Metaverse ‘ape’ avatars, as well as digital versions of themselves performing their new single, “From The D 2 The LBC”. Following their ‘Metaverse’ performance on the 2022 VMAs, Eminem and Snoop have gone on to sell memorabilia and other merchandise featuring their ape avatars under the name ‘ape editions’.
Notably, these ape avatars can also be used as avatars within an upcoming metaverse game. Eminem’s and Snoop’s ‘brands’ have been expanded to include human and ape avatars of themselves, which feature within their live performances, music videos and have formed part of merchandising campaigns. Eminem and Snoop have monetised and commercialised virtual versions of themselves, and the ‘ape’ avatars they own. The general public are able to determine the ‘ape’ avatars are linked to Eminem and Snoop because they feature within their performances, have appeared on their official social media accounts and because they solely use the voices of their respective owners – Eminem and Snoop.
Clearly, Eminem and Snoop are actively seeking to derive a commercial benefit from their virtual counterparts, but what happens when someone tries to capitalise on someone else’s image? David Guetta created a ‘deepfake’ of Eminem’s voice earlier this year, causing a lot of speculation online about the legal/ethical aspects of Guetta’s actions. Guetta stated that ‘Emin-AI-em’s guest appearance during a gig in early February 2023 was ‘just a joke’, and that he “obviously … won’t release this commercially”. Yet Guetta did not confirm whether the song would remain in his live setlist. Emin-AI-em featured in Guetta’s live setlist, and rapped “this is the future rave sound, I’m getting awesome and underground”. Did the gig-goers know at the time they heard Emin-AI-em that he was a deepfake, created by AI? It is hard to know, and difficult to tell how UK law would respond to this ever-changing techno-legal landscape.
Unlike some other countries, there is no actual recognition of ‘image’ or ‘personality’ rights under UK law. Celebrities and other famous personalities have previously sought protection of their ‘image’ by using existing UK privacy laws, contractual provisions and assertion of Intellectual Property Rights - for example, by bringing claims under the tort of ‘passing off’.
In 2013, pop star Rihanna brought a claim against high street clothing brand Topshop. The claim included a request for damages of £3.3 million, following Topshop using an image of Rihanna on one of their T-shirts without Rihanna’s permission. The image used was one taken by an independent photographer during a video shoot in 2011.
The independent photographer owned the copyright in the image. The independent photographer then sold ‘licences’ permitting ‘licensees’ to use the image of Rihanna, which Topshop bought. Rihanna successfully sued Topshop on the basis that she had not given permission for her image to be used on Topshop’s T-shirt. Rihanna’s case was that Topshop’s use of her image on its T-shirt amounted to misrepresentation because customers would believe that she was associated with Topshop. Rihanna argued that the outcome of this association would be that customers would be encouraged to buy Topshop’s T-shirt, and the result would be damage to her reputation and goodwill as a ‘fashion icon’. Although Topshop went on to appeal the decision in 2015, its appeal was dismissed.
As Rihanna showed, in cases like this, the most obvious route seems to be bringing a claim for ‘passing off’. This type of claim can be brought by businesses or individuals, and it protects the business or individual from those that may misrepresent that their goods or services are the goods or services of another. Essentially, you are protecting your (or your business’) reputation and goodwill. Guetta’s use of Eminen’s voice (whether under the name Emin-Al-em or not) could very likely be seen as an attempt by Guetta to ‘pass off’ that Eminen was involved in/endorsed Emin-Al-em’s performance. Guetta stating Emin-AI-em’s ‘guest appearance’ was ‘just a joke’, and he has no intention of commercially releasing the track wouldn’t matter.