Comment by sjducb
13 hours ago
I think this is great. It’s similar to the rights that brands have.
Imagine I drew a Coca Cola logo in paint. Now I own the copyright to my picture of the Coca Cola logo. Next I stick it on my new brand of soda. That’s not allowed.
Coca-cola own rights to their logo. You should own rights to your face and voice.
This is a bit of an unfortunate example because it mixes copyright law and trademark law, which are very different in their character.
I think your conclusion is correct, but the child comments mentioning fair use would not apply because fair use is a copyright concept, not a trademark concept. And I'm really only familiar with US laws, so I'm not even sure if fair use is a concept in Denmark or not. They have a different notion of copyright than we do in the US.
That said, I think Denmark did the wrong thing here. I think face and identity is much closer to a trademark than it is to something that is a created piece of artwork. Trademark law is a little bit narrower because it allows you to use the trademark to refer to the company, but it prohibits you from using the trademark to confuse customers about whether this is an authentic product. This feels quite analogous to the issue that Denmark is trying to address with the deep fakes, so I'm a little bit surprised on the copyright angle, since I can imagine a lot of legitimate uses for taking a picture of someone without needing their permission and distributing it. CCTVs, traffic cams, mug shots, police body cams, and the ever-increasing trend of recording in any situation that becomes tense or dangerous. Will a civilian be told by the cop that he's violating copyright because they want to film the interaction with the police? This reminds me of when cops would play Taylor Swift loudly in the background so that people couldn't post videos of the interaction on YouTube.
But how would that work for news reporting? Imagine a politician doing something stupid in public. Should it not be possible to broadcast that if he disallows it?
In Switzerland, where people have the legal right to control whether and how their image may be photographed and published, exemptions are made if the image/person is of public interest. This is decided on a case-by-case basis, so the news org has to be willing to argue this in court.
Let's say, as an example, a married politician having an affair with someone. Generally, news sites will publish photos with the face of the politician visible but would blur the other person. The former is clearly a person of public interest, the latter is not. Even if it's a photo taken in a public space.
Interesting concept. Case-by-case basis means that in practice only the rich and corporations have access to their exceptions, analogous to US copyright "fair use", which is on a litigated, case by case basis.
1 reply →
This isn’t about real photos of things that actually happened. This is about AI generated imagery.
So it’s not a photo of a politician doing something bad. It’s an AI recreation of what they are alleged to have done.
The law does have to be written very carefully.
Slander is already illegal no? Not that it stops all kinds of smear campaigns and alternative truths.
Would likely fall under fair use or an analogous right in most places. If Coca-cola does something stupid, they do not have the ability to censor depictions of their logo from reporting on it.
Probably worth noting that "fair use" is a concept based in US law and jurisprudence. The law in many EU jurisdictions works quite differently.
Think of that like reproducing a particularly ill-conceived Coca Cola advertisement.
Then, when someone uses their face to promote something, someone else can repeat the face with what it promotes.
So I think the whole thing actually works in this particular case.
That could come under fair use. Like if you had a coke can on film, you could broadcast it. But you could not apply the coke brand on some other product.
It works the same way as news currently does. You can report on people, but you can't take a picture of someone and use it as your brand's model/logo.
But you mostly already couldn't do that, right?
What specific behaviors does this forbid that weren't already forbidden?
There is the (helpful to distinguish) 'gap' here. The media org that will report on a politician (for good or bad), will use the politician's 'news-PR-approved-actual-photo-provided-by-the-politician's-PR-team' (the serious one for war-news, the smiling one for the tax-breaks, and so on). They won't deepfake/use midjourney to create a photo of the politician eating an ice-cream while a pigeon is pooping on him (something that Colbert/Kimmel/Meyes/et al would do - clearly as a parody).
But me (not really) on my website (I don't have one) where I trash politicians (I don't) and post a photo of said politician eating poop, that should be 'frowned upon'. (Or worse to shame an ex-gf or a colleague that 'won't yield to my sexual advances').
While reading the article though, I thought of the cases where a paparazzo takes a photo of CelebrityA, then the CelebrityA posts said photo to her Insta (without getting permission from the agency) and the agency sues her. Now (in Denmark) the CelebrityA can sue the paparazzo for taking her photo in the first place (right?). This would protect people from getting uncomfortable photos.
How do you plan on handling dopplegangers? They looks extremely similar (if not twin-like), yet they should each own the rights to their image and features.
Not sure why you're downvoted, it's an entirely valid question.
What we'll probably see is, celebrity look-alikes will be contacted to license out their own "features".
It's kind of wild that brands have had more robust protections than actual people when it comes to identity
They don't, really. At least in Germany, the "right to one's likeness" already exists as an explicit law but entirely separate from copyright and trademark law, which is what governs brand likeness.
What Denmark is proposing is simply an extension of the existing safeguards that many EU countries, as well as EU legislation generally, already provide regarding the control of their citizens over their likeness. It is not really revolutionary but a sensible addition in the light of technological advancements.
You must distinguish between copyright and trademark.
Andy Warhol drew images of Campbell's soup cans in paint. https://en.wikipedia.org/wiki/Campbell%27s_Soup_Cans
He controlled the copyright to that painting. That's transformative, and the result does not meaningfully affect Campbell's ability to trade.
Quoting that Wikipedia link: "Although Campbell's never pursued litigation against Warhol for his art, United States Supreme Court justices have stated that it is likely Warhol would have prevailed.", with two quotes from two Supreme Court cases.
The second such quote is from Neil Gorsuch: "Campbell's Soup seems to me an easy case because the purpose of the use for Andy Warhol was not to sell tomato soup in the supermarket...It was to induce a reaction from a viewer in a museum or in other settings."
On the other hand, were Warhol to stick his copyrighted images on a new brand of soup, that would violate trademark law as it would confuse buyers.