Deepfakes and copyright in Kendrick Lamar's "The Heart Part 5"?  – The Hollywood Reporter

Deepfakes and copyright in Kendrick Lamar’s “The Heart Part 5”? – The Hollywood Reporter

Kendrick Lamar’s “The Heart Part 5” music video welcomes the rapper’s new collaboration with Hollywood’s most famous and despised parodists: South Parkby Trey Parker and Matt Stone. With this partnership, it’s no surprise that celebrities, living or dead, some of whom are no strangers to controversies of their own, have made unexpected appearances in the video using deepfakes.

In the clip, the rapper uses the controversial technology to transform into Will Smith, Jussie Smollett, OJ Simpson, Kobe Bryant and Nipsey Hussle. The celebrities are unlikely to have consented to be in the video, raising questions about whether Lamar and production house pgLang are legally in the clear for using their likenesses.

Deepfakes use a form of artificial intelligence called deep learning to manipulate faces and voices. Using different images and videos of an individual from different angles, the technology enables the creation of fake recordings that look real.

Hollywood — and the government — are still grappling with deepfakes, which haven’t yet been widely adopted because alternatives like CGI are even better in many cases. There is a YouTube channel dedicated to recreating scenes from famous movies with different actors. A video features Sylvester Stallone instead of Macaulay Culkin in Alone at home; another features Bruce Lee in place of Keanu Reeves in The matrix.

There is currently no copyright law designed to combat the use of deepfakes. In fact, they allow them in most cases.

Deepfakes likely fall under the “fair use” exception to copyright infringement. The doctrine permits unlicensed use of copyrighted works in limited circumstances, such as commentary, criticism, and news reporting. Four factors determine whether a work is eligible: (1) the purpose and character of the use, (2) the nature of the copyrighted work, (3) the amount and significance of the portion taken, and (4) the effect of the use on the potential market. The first factor extends the protection of works to “transformative use”, defined as when the purpose of a copyrighted work is altered to create something with a new meaning or message.

“Looking at this from the perspective of how [the deepfake] was used in the creative process, you need to focus on the different meaning and message that the resulting use ends up conveying,” says Aaron Moss, senior copyright attorney, chairman of Greenberg’s litigation department. Glusker.

Lamar says “The Heart Part 5” is about perspective. It begins with the line: “As I get a little older, I realize that life is a perspective/And my perspective may differ from yours.” From there, he uses the transformations enabled by deepfakes to talk about various issues from the perspective of the people he transforms into.

Taking Smith’s face, Lamar references the actor who takes to the Oscars stage to slap Chris Rock for a prank aimed at his wife. He raps, “In the country where hurt people hurt more people/F— it’s called culture,” presumably as an indictment of the massive discussion the incident sparked about the couple’s personal lives.

Continuing the theme of black representation, Lamar morphs into Smollett and sings about the actor’s desire to “wanna represent for us.” He references Smollett staging a racist hate crime to boost his career.

Copyright attorney Alan Friedman, a partner at Fox Rothschild, says the video’s deepfakes appear “very transformative” and that “fair use would be a strong defense against a copyright challenge.”

Since copyright laws do not consider intent, they also protect malicious content such as parodies, which Lamar’s video could be classified as and was considered a transformative use.

Courts have historically taken a liberal stance on protecting works as fair dealing. Since 2010, the success rate on a transformative use defense has been about 63%, according to Jiarui Liu, a professor at the University of New Hampshire School of Law.

A major factor in the lopsided nature of the split was the 2013 decision of the 2nd United States Circuit Court of Appeals in Cariou v. Prince. In this case, the appeals court lowered the fair dealing bar by finding that works can be transformative simply by presenting a new aesthetic.

The scope of this defense will be tested when the US Supreme Court considers a separate case involving a series of paintings by Andy Warhol that relied on existing photos of Prince as a model.

But even without fair use protection, the celebrities who appear in Lamar’s video likely have no recourse under copyright law because they don’t own the underlying photos and videos that were used to create the deepfakes.

Deepfakes are generated by feeding a program images and recordings of an individual, which are then used to recreate authentic renderings. Popular celebrity deepfakes often seem smoother due to the availability of inputs that the program can learn from.

“If you’re using 2,000 different images of Kobe to train a neural network, it’s hard, if not impossible, to be able to say, ‘I took that one and I’ve copyrighted it,'” Moss explains. You can copyright photos, but not your image. You can copyright sound clips, but not your voice.”

Celebrities in deepfakes can choose to sue for defamation, a claim extremely difficult for public interest people to win. They might also choose to pursue a related false light claim or recklessly create a harmful and false implication about someone in a public place.

Other possibilities include claims for intentional infliction of emotional distress, which would require proof of “extreme and outrageous conduct”, and right of publicity, which requires compensation due to the misappropriation of someone’s likeness to commercial purposes.

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