Litigation and Statutory Developments

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Shortly after the 2015 debut of the hit Fox Television show Empire, Clayton Tanksley sued the studio, distributor, producer and creators of Empire for copyright infringement and related claims in the United States District Court for the Eastern District of Pennsylvania.  Tanksley’s claims stem from an alleged 2008 meeting with Empire’s creator and producer, Lee Daniels during a film competition sponsored by the Greater Philadelphia Film Office called Philly Pitch.  (The Film Office also was sued by Tanksley.)  Following the event, Tanksley claims to have discussed with Daniels a three episode television series he created and copyrighted called Cream, which was about an African American record executive who runs his own hip-hop label.  He also claimed to have provided Daniels with a DVD and script for the Cream series.  Tanksley’s complaint alleged that Cream and Empire are “strikingly substantially similar” in many respects, including the main and supporting characters, scenes and the overall themes of both works.

Copyright law protects the expression of ideas but not the ideas themselves.  Thus, in order for a plaintiff to prevail in a copyright infringement action he must demonstrate substantial similarity in the protected expression between the two works and not merely the fact that they share similar ideas or themes.  In dramatic works such as Empire and Cream, scènes à faire or plot elements that flow predictably from a general idea are unprotected.  For example, in “a film about a college fraternity … parties, alcohol, co-eds, and wild behavior would all considered scènes à faire and not valid determinants of substantial similarity.”  Tanksley v. Daniels, et al., No. 17-2023, p. 16, — F.3d – (3d. Cir. 2018).

Under that standard, the defendants moved to dismiss the complaint, arguing primarily that the two works were not substantial similar in protected expression.  In deciding defendants’ motion, the court performed a side-by-side analysis of Empire and Cream to determine whether a lay-observer would believe that the copying was of protectable aspects of Tanksley’s series.  The trial court granted the motion to dismiss, finding that the two works contain “dramatically different expressions of plot, characters, theme, mood, setting, dialogue, total concept and overall feel.”  And while the general idea of the two series revolved around African American music moguls, that was not protectable under copyright law.

Tanksley appealed to the Third Circuit raising primarily two arguments:  (1) the question of substantial similarity is too fact-intensive to be resolved on a motion to dismiss; and (2) the trial court erred in finding no substantial similarity between Empire and Cream.  As to the first argument, the court determined that certain works, including dramatic works, may be evaluated in a side-by-side comparison at the motion to dismiss stage and dismissed if “no trier of fact could rationally determine the two works to be substantially similar.”  The appellate court rejected plaintiff’s argument that the trial court erred in rendering its decision without the benefit of witness testimony, documentary evidence or expert analysis holding this was irrelevant to the dispositive question of how the two works would appear to a layman viewing them side by side.

As to the second argument, the Third Circuit determined that the trial court properly concluded that there was no substantial similarity of protected expression between Empire and Cream.  As the court concluded, aside from superficial, general similarities between the two shows, they were not substantially similar as a matter of law.  “The shared premise of the shows – an African-American, male record executive – is unprotectable.  These characters fit squarely within the class of ‘prototypes’ to which copyright protection has never extended.”  Thus, the Third Circuit agreed with the trial court that as to the protectable expression of plot, characters, theme, mood, setting, dialogue, total concept, and overall feel, no reasonable jury could conclude that Empire and Cream were substantially similar.

We last blogged here about the Second Circuit’s denial of TV Eyes’ fair use defense in a lawsuit brought by Fox News. Now the Wikimedia Foundation (owner of Wikipedia), joined by other free press advocacy groups, have filed an amicus brief in support of TVEyes’ petition for the Supreme Court review.U.S. Supreme Court building in Washington, DC

TVEyes is a subscription service that records massive amounts of television content and compiles it into a searchable database of 10-minute clips. Its subscribers range from the New York Times to the Department of Defense. Fox News brought a copyright infringement action against TVEyes in 2013. The Second Circuit handed down a decision in February upholding the network’s claims. TV Eyes has appealed this decision to the Supreme Court.

The Wikimedia brief warns of dire consequences if the circuit court ruling is allowed to stand, stating that it permits copyright owners to “stifle criticism and undermines established fair use principles that are vital for media commentary.” It notes further: “In today’s fast-paced and increasingly polarized media landscape, researchers, commentators, and critics must be able to record, search, watch, and compare the original visual recordings of relevant broadcasts. Such comprehensive tools can only be maintained by commercial services like TVEyes.”

The amici questioned the Second Circuit’s balancing of the four fair use factors. The court found the fourth factor dispositive, in that the TVEyes service harmed the ability of Fox News to benefit from its copyrights by licensing clips directly. The Wikimedia brief challenges that conclusion, asserting that the existence of a direct market for Fox News clips is “theoretical,” and one that Fox would be “unlikely to authorize.”

Fair use analysis always requires a balancing of the copyright holder’s statutory monopoly against the benefits of free dissemination of content. Frequently, this involves purely commercial interests on both sides, but some fair use cases, particularly those involving matters of public concern, implicate larger values. It has been 20 years since the Supreme Court issued a major fair use decision. Advocates on both sides will be watching to see whether it will use this case to clarify a contentious doctrine.

One copyright lawsuit says the answer is “no.”

In a case against Take Two Interactive, the maker of the popular “NBA 2K” video game franchise, Solid Oak Sketches LLC argues LeBron James can license his likeness, but cannot license images of his tattoos due to copyright law.

Solid Oak claims it owns the images of multiple NBA players’ tattoos including LeBron James, Eric Bledsoe, and retired player Kenyon Martin, in a September 22, 2018 filing that opposed Take Two’s motion for summary judgment.

“NBA 2K” games allows users to play simulated NBA basketball games – complete with life-like images of prominent NBA players. With a spot-on depiction and digital recreation of an athlete like LeBron James comes the depiction of his tattoos – many of which are recognizable to fans and gamers alike – and the ensuing battle over who has ownership and control to license those images.

Solid Oak purchased the copyright to the images of the tattoos from actual tattoo artists. Now the company claims it – alone – owns the copyright to the tattoos. Take Two claims that James gave it permission (through the NBA as a third party) to use his name, image, and likeness in the video game. So, who’s right? Both parties could be.

Dual rights in a photo

Solid Oak’s recent motion argues there are two rights that content creators (and licensors) must be aware of when dealing with a photograph. First, the right of publicity, including name, image, likeness and how those can be used commercially. This means James can give a company permission to use his name, photos of him, and generally the way he looks in an advertisement, for example, to generate revenue. Solid Oak does not assert any interest in this right.

What it does assert is that it owns the copyrighted image of James’s tattoos. A copyright contains a bundle of rights, including the rights of reproduction and public display. According to Solid Oak, both of these rights were infringed by depiction of the tattoos in NBA 2K.

As a result, Solid Oak concedes that LeBron James owns his right of publicity, but argues that he has no power over use of the copyrighted image of tattoos on his body.

LeBron James: ‘I Have the Right to Have My Tattoos Visible When People or Companies Depict What I Look Like”

LeBron James feels differently. On Friday August 24, 2018, he testified on behalf of Take Two, stating “my understanding is that the tattoos are a part of my body and my likeness, and I have the right to have my tattoos visible when people or companies depict what I look like.”

Take Two argues that a ruling in Solid Oak’s favor would allow it to “shake down” any TV show or program. This could include NBA games broadcast on TV where well-known players and their tattoos are visible.

Does this mean LeBron James and other players could potentially violate copyright laws by simply appearing onscreen?

Potential Slippery Slope

Take Two argues there is a risk of chilled speech and content suppression if the court rules NBA players must secure licenses from tattoo artists prior to making appearances.

Earlier this year, Take Two argued its use of the tattoo images is protected under the fair use doctrine and the de minimis standard. However, U.S. District Court Judge Laura Taylor Swain declined to dismiss the case in March on either ground, seeking more facts.

One solution could be for NBA players to obtain signed releases from tattoo artists for each appearance depicting the player. The downside is this would significantly increase the burden on players to clear each appearance with a third party, leaving them with little control. This could be the result if the court rules in Solid Oak’s favor.

LeBron James was the highest rated player in “NBA 2K17,” indicating his prominence in the game, particularly with game users. But how big is the market for tattoo licensing? One expert for Take Two claims there is no tattoo licensing market for video games. Now, it is up to the court to weigh expert testimony on user preferences in “NBA 2K” and just how prominently the tattoos are displayed.

The court’s decision will likely affect the longstanding relationship between tattoo artists and NBA players – for better or for worse.

Mikella Persons Wickham is a law clerk in the firm’s Entertainment Department, based in its Los Angeles office.

Among copyright lawyers, Stairway to Heaven may become known not just for its abstract lyrics and acclaimed guitar solo, but also for the legal rulings that upended a jury verdict of non-infringement and sent the parties back to the District Court for a second trial to determine if the classic Led Zeppelin song was the product of copyright infringement.

50664380 - slippery stairs warning signIn brief, the copyright owner of the song Taurus, which was written in 1966 and first performed several years before Stairway to Heaven’s 1971 release, claimed that the latter infringed the former.  Although the jury found that the band, including Stairway to Heaven songwriters Jimmy Page and Robert Plant, had access to Taurus, they found that the two songs were not substantially similar and, thus, that there was no infringement.  The Ninth Circuit’s ruling last week addressed multiple issues, three of which are discussed below.

First, the Ninth Circuit faulted the District Court for its failure to include a jury instruction that the selection and arrangement of non-protectable musical elements is protectable under the Copyright Act.  The opinion notes that this was not a new legal principle and that, more than ten years earlier, the Ninth Circuit had affirmed a substantial similarity finding based on the manner in which five unprotected musical elements appeared in the works at issue in that case.  The Ninth Circuit rejected Defendants’ argument that the omission of the instruction was “harmless error.”  The Court found that the exclusion “severely undermined” Plaintiff’s ability to establish extrinsic substantial similarity, noting that Plaintiff’s expert had testified that the required similarity existed because Taurus and Stairway to Heaven incorporated the same five musical elements (some protected, some in the public domain) in the same way.

Second, the Ninth Circuit ruled that reversal was required because two of the District Court’s jury instructions regarding “originality” imposed too heavy a burden on the Plaintiff.  These instructions stated that (i) elements in the public domain or included in prior works, and (ii) common musical elements like chromatic scales, arpeggios and sequences are not protected by copyright.  The Court faulted these instructions for failing to clarify that the selection and arrangement of non-protected musical elements could qualify for copyright protection and ruled that they “undermined” Plaintiff’s expert’s testimony that Taurus and Stairway to Heaven were substantially similar because of the manner in which they combined unprotected elements.

Third, the Ninth Circuit agreed with the District Court that the Plaintiff could only rely on the copy of Taurus’s music composition deposited with the U.S. Copyright Office, and not also on sound recordings to prove substantial similarity because Taurus was released prior to Congress’s extension of copyright protection to sound recordings in 1972.  Significantly, however, the Ninth Circuit ruled that sound recordings of Taurus should have been played for the jury during cross-examination of Led Zeppelin member Jimmy Page to prove access.  Even though it accepted that the recordings were relevant to access, the District Court excluded them under Federal Rule of Evidence 403 because of its concern that jurors would consider them for purposes of substantial similarity.  The Ninth Circuit deemed this an abuse of discretion that deprived jurors of the opportunity to evaluate Page’s demeanor both when he was questioned about access and when he listened to the recordings.  The Ninth Circuit found the risk of juror confusion “relatively slight” and that it could be “further reduced” by admonishing the jury to only consider the recordings for purposes of access and not also substantial similarity.

In March of this year, the Second Circuit reversed a decision by the District Court and held that the video clipping service operated by TVEyes infringed Fox News’ copyrights. We covered this decision in a previous blog. TVEyes is now attempting to bring the matter to the Supreme Court in what could be a landmark case regarding fair use of newsworthy content.U.S. Supreme Court building in Washington, DC

TVEyes is a subscription service that records essentially all television broadcasts on 1,400 channels on a 24/7 basis. By using the closed-captioned content that accompanies the recorded broadcasts, it is able to create a text-searchable database of the contents of each clip. TVEyes subscribers can run searches that return a list of video clips containing the searched terms. Each clip runs for 10 minutes and begins shortly before the search term appears in the clip. In addition to news organizations such as the New York Times, its subscribers include the U.S. Department of Defense, the United Nations, professional sports leagues and even the White House.

Five years ago, Fox News brought suit against TVEyes for copyright infringement based on its “verbatim reproduction” of Fox’s broadcasts. TVEyes countered by asserting a fair use defense. The District Court agreed and dismissed Fox’s claims, but the Second Circuit reversed and remanded the case with instructions to enjoin TVEyes from making available to clients the ability to watch the 10-minute clips retrieved from TVEyes’ client search requests. (Fox did not object to TVEyes’ creation of a text-searchable database, only to its delivery of clips.) The court held that two elements of TVEyes’ use favored Fox. First, by making 10 minutes of content available, TVEyes delivered “virtually the entirety of the Fox programming that TVEyes viewers want to see and hear.” Second, and most important, TVEyes’ service was sufficiently competitive to potentially deprive Fox of revenues that it could have been receiving from its own program of searchable access to its broadcasts. The very success of TVEyes’ service was strong evidence of the existence of a market for searchable clips.

The Second Circuit contrasted this to Google’s actions – which were found to constitute fair use – in Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015) (“Google Books”). In that case, Google made unlicensed text-searchable copies of millions of books for which searches retrieved “snippets” of the books containing the search terms. Unlike TVEyes’ 10-minute video clips, these “snippets,” according to the Second Circuit, “abbreviated to ensure that it would be nearly impossible for a user to see a meaningful exposition of what the author originally intended to convey to readers.”

TVEyes is now seeking to argue its case to the Supreme Court. It argues that its case presents an opportunity to resolve a split between circuits over “a question of exceptional importance, including the proper balance under copyright law between the interests of a copyright holder and the First Amendment right to criticize and comment upon the copyright holder.” TVEyes also notes that the Court has not addressed fair use for over 20 years, since it articulated the doctrine of transformative use in the case of Campbell v. Acuff-Rose Music.

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The FCC’s reexamination of the Children’s Television Act (CTA), which sets forth a myriad of rules and regulations with respect to the broadcasting of children’s programming, has entered the next phase as the deadline to submit public comments passed on Monday.  FCC Commissioner Michael O’Reilly announced in January as part of the FCC’s media modernization campaign that the commission will consider rolling back regulations under the CTA.  O’Reilly’s announcement has sparked heated debate amongst dozens of broadcasters, media companies, and public interest groups as to what, if any, changes should be made.

The CTA was first passed by Congress in 1991 to require broadcasters to air some amount of standard-length educational and informational programming specifically designed for children under 17 years old.  Although no minimum requirement of programming hours was imposed at that time, the law’s regulations strengthened over the years and now require broadcast companies to air an average of three hours of children’s programming per week between the times of 7 a.m. and 10 p.m.  Additionally, core children’s programming must run at least 30 minutes in length, be regularly scheduled weekly, and be labeled throughout the episode with an “E” or “I” symbol.  Broadcast networks are also required on a quarterly basis to specify in writing the objective of their current and prospective programming, target child audience, and various other data requiring voluminous paperwork to be filed with the FCC.  Non-compliance with any of these requirements jeopardizes a broadcast company’s ability to renew its license.

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Of course, a lot has happened in media over the 27 years since the CTA’s passing.   The explosion of the Internet and proliferation of alternative means of media consumption including over-the-top providers, subscription services, video-on-demand content, and paid television means traditional broadcast is no longer the primary means through which anyone, let alone kids, consumes content.  O’Reilly argues broadcasters are at a further disadvantage in this increasingly competitive field by having to contend with the CTA’s outdated regulations which he claims are costly and unduly limit creativity.

Specifically, the FCC is considering elimination of the requirement that core programming be at least 30 minutes in length.  O’Reilly cites “Schoolhouse Rock” and “In the News” as examples of shorter programs with notable success that were killed off by the CTA.  Also on the chopping block is the requirement that children’s programming be between 7 a.m. and 10 p.m., the requirement that programming be regularly scheduled weekly, and the mandate that broadcast networks submit extensive paperwork regarding their programs on a quarterly basis as opposed to O’Reilly’s recommendation to require the materials annually.

Critics of the proposed changes claim unwinding the CTA would result in less children’s programming on broadcast television, which disproportionally impacts millions of low income families who do not have access to the Internet or alternative means of media consumption. O’Reilly counters arguing deregulation will not eliminate children’s content from broadcast television but will rather allow broadcasters greater flexibility to design more cost-effective means of providing this content.  There is no evidence the CTA has enhanced children’s programming since the 1990s, argues O’Reilly, and the market for this programming is strong enough to sustain itself without heavy regulation.  For instance, O’Reilly cites PBS Kids (a 24/7 children’s content provider) which was licensed to approximately 100 stations nationwide covering 90 percent of U.S. television households.

The FCC is required to issue a reply to public comments by October 23 and thereafter determine an appropriate regularly scheme.  Note, the CTA’s regulations requiring kid-appropriate commercials when broadcasting children’s programming are not part of this reexamination and are expected to remain in full force.

After losing on its first attempt, the Walt Disney Company managed to turn the tables on Redbox to obtain a preliminary injunction against Redbox’s sale of movie download codes.

The case arose out of Disney’s marketing of  “Combo Packs” of Disney movies, which include a DVD, Blu-Ray disc and digital download code. Redbox was legally purchasing the Combo Packs, then opening the packages and selling the download codes on its website separately from the physical discs. This, Disney claimed, encouraged consumers to violate the terms of copyright licenses set forth on printed inserts in the Combo Packs and warnings on the download websites Disney Movies Anywhere and RedeemDigitalMovies, which purport to restrict use of the codes only to the owners of the discs.

Disney applied for a preliminary injunction in February of this year. The motion was denied, but on surprising grounds. Both parties focused their arguments on the first sale doctrine, which they expected would be dispositive. The first sale doctrine provides that once a copyright owners permits the sale of a copy of its work, it cannot prohibit subsequent sales or transfers. Both sides agreed that this doctrine permitted Redbox to sell or rent the DVD and Blu-Ray discs without restriction. Redbox asserted that the paper slips containing the download codes were legally indistinguishable from physical discs. Disney’s response was that the codes were not equivalent to copies of the movies, but only keys to permit consumers to create copies on their own computers.

District Judge Dean Pregerson sided with Disney on the first sale issue, but refused to grant the injunction on the grounds of misuse of copyright. The misuse claim turned on the rather narrow ground that the specific language of the license agreementsfor the download codes was unduly restrictive. The license agreements for downloads on the RedeemDigitalMovies required redeemers to represent that the are currently “the owner of the physical product that accompanied the digital code at the time of purchase.” Similarly, the terms of use on the Movies Anywhere website only allow registered members to “enter authorized . . . Digital Copy codes from a Digital Copy enabled . . . physical product that is owned by [that member].” The court interpreted this to mean that if a consumer transferred ownership of the physical disc (clearly permitted under the first sale doctrine), she would forfeit the right to download the digital copy.

As I discussed in a previous blog, this decision offered Disney the simple recourse of redrafting the license terms on Combo Pack boxes and download sites. The studio did so, beginning with the Black Panther Combo Pack, and renewed its quest for a preliminary injunction. The new language does not condition download rights on ownership of the discs, but states, “Digital code redemption requires prior acceptance of license terms and conditions,” and further, that “The digital code contained in this package may not be sold separately.” Judge Pregerson found that these changes were sufficient to overcome Redbox’s claims of copyright misuse: “Under the old terms, a Combo Pack owner who disposed of the discs was indeed left with a worthless code because continued possession of the discs was a condition of digital access. Now, however, digital access is conditioned not on possession of the discs, but on the manner of Code acquisition. A Combo Pack owner who disposes of the discs is left with the same digital access rights he or she always possessed.”

Although Redbox can continue to sell codes subject to the old licenses, this decision will presumably shut down future sales. More importantly, the case establishes a precedent under the first sale doctrine that will certainly be welcome to content owners seeking to control their digital rights.

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Our story so far:

Comic-Con is a registered trademark of SDCC, the organizers of the renowned San Diego convention for all things pop culture. SDCC brought an infringement action against the organizers of a Utah event  named Salt Lake Comic Con. The defense was that the mark had become generic by widespread use of the same or similar marks by other conventions. Salt Lake also asserted various acts of fraud by SDCC.

As the case moved toward trial, Farr and Brandenberg, the Salt Lake organizers, pressed their case energetically on their website and on social media. Fearing the publicity would taint the jury pool, District Judge Anthony Battaglia issued a broad gag order against further public discussion, which the defendants successfully appealed by writ of mandamus to the Ninth Circuit. (In light of the subsequent developments discussed below, Farr and Brandenberg may wish they had followed the conventional wisdom that it’s never a good idea to seek a mandamus against the judge, particularly a federal judge, who is going to be presiding over your trial.)

The case went to the jury late last year. The verdict was that Comic-Con is a valid mark, but the defendant’s infringement was not willful, and so they awarded a mere $20,000 in damages rather than the $12 million that the plaintiffs sought.

Now, the latest developments:

The parties cross-moved for the verdict to be set aside and a new trial held. Judge Battaglia declined to order a new trial and refused to reverse the verdict of non-willfulness, noting that the proliferation of Comic Cons around the country would have justified the Salt Lake organizers to think that they could use the mark. He did, however, issue an injunction against Salt Lake Comic Con and in a particularly painful blow, ordered it to pay $4 million in SDCC’s attorneys fees and costs. In awarding the fees, the judge found the case to be “exceptional” due to the defendants’ “repeated, re-argued and recycled arguments,” which he found to be “objectively unreasonable.”

Judge Battaglia’s injunction prohibits Farr and Brandenberg from using “Comic-Con,” “Comic Con” or any phonetic equivalent. It also bars them from advertising that their event was “formerly known as Salt Lake Comic Con.” In what is probably cold comfort, the judge permitted the defendants to use the expression “comic convention,” and they were not required to destroy existing merchandise and marketing materials.

The Salt Lake lawsuit was only one of many that SDCC has brought against other “Comic-Con” operators, which were put on hold pending the outcome of this case. We should expect a spate of settlements in the coming months in which SDCC’s competitors either change their names or enter into trademark license agreements. This saga is not necessarily over–Salt Lake can still appeal–but for now things are looking good for the Empire.

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Johnny Depp won a major battle last week in his war against his former attorneys Bloom Hergott LLP.  The firm alleged that it was entitled to a percentage of Depp’s gross entertainment earnings pursuant to an oral fee agreement.  The Court disagreed and found the contract unenforceable.

Bloom represented Depp for nearly twenty years and alleged Depp always directed fee payments to Bloom under their arrangement until July of 2017 when the parties had a falling out.  Depp threw the first punch in October of 2017 for breach of fiduciary duty, legal malpractice, unjust enrichment, unfair competition, and violation of California Business & Professions Code § 6147 which requires attorneys representing clients for a contingency fee to memorialize this agreement in writing.  Bloom swung back counterclaiming for breach of contract and, in the alternative, quantum meruit in pursuit of its unpaid legal fees.

In granting Depp’s motion for judgment on the pleadings as to Bloom’s breach of contract claim, Judge Terry Green found no significant difference between a contingency agreement in the personal injury context (where it is most commonly used) and a percentage agreement in the entertainment industry.  Both involve some degree of risk and invoke § 6147.  That talent attorneys have customarily entered into oral agreements for a percentage of the client’s earnings is irrelevant, held Green.  “I am aware that showbiz people sometimes think they live in a special universe, but they don’t,” Green said.  “I don’t see an exception here.”

Accordingly, pursuant to § 6147(b), Depp can void the agreement and Bloom’s recovery is limited to only a “reasonable fee” for its work.  But Depp does not plan to pay a dime.  He contends nothing is owed given Bloom’s alleged breach of its fiduciary duty in sacking Depp with a hard money loan which resulted in Depp losing approximately $32 million in film residuals.  The loan was purportedly financed by Tyron Management Services, an affiliate of Grosvenor Park Media of which Jacob Bloom is said to be a member on the advisory board.  Depp reports Bloom failed to disclose this alleged conflict of interest and other material information about the loan.

Bloom has yet to comment on the ruling or indicate whether it will appeal.  In the meantime, the parties’ remaining causes of action remain on the table as the case enters the discovery phase.  Trial is set for May, assuming no settlement is reached.

Earlier this year, the leading online pornography site PornHub announced a ban on celebrity “deep fakes.” These are videos in which AI technology is used to place a celebrity likeness seamlessly over existing footage. The site stressed its commitment to the proposition that pornography must be consensual on the part of both makers and consumers, while deep fakes are tantamount to forced nonconsensual sex acts by the celebrities depicted. In a statement to Vice, PornHub’s position was unequivocal:  “We do not tolerate any nonconsensual content on the site and we remove all said content as soon as we are made aware of it. Nonconsensual content directly violates our TOS and consists of content such as revenge porn, deep fakes or anything published without a person’s consent or permission.”

The reference to revenge porn is particularly interesting, since this has emerged recently as a hot topic in the law. Unlike deep fakes, to which the celebrity has given no consent whatever, the victim of revenge porn generally participated in the creation of the erotic content only to have it disseminated later on the internet to embarrassing (to say the least) effect, usually by an ex-lover. Several states have sought to curtail revenge porn by means of criminal statutes, only to face challenges on First Amendment grounds, including from the ACLU.

The Hollywood studios have raised similar arguments regarding deep fakes. The MPAA, the lobbying organization for the major studios, has come out in opposition to a proposed New York statute criminalizing the use of “digital replicas” for pornographic purposes. In a memo setting out its reasoning, the MPAA notes that the bill lacks protections for expression that is clearly within the ambit of the First Amendment such as news reporting, commentary and analysis. The memo also points out the notorious slipperiness of defining pornography at all. (Although not alluded to in the memo, no less a person than Justice Potter Stewart could do no better than to throw up his hands and declare in a famous quote, “I know it when I see it.”)

By enshrining the right to free speech in the Constitution, the Founding Fathers insured that the United States would have a uniquely freewheeling public culture. Those estimable gentlemen could not have conceived, and, however open-minded for their times, would likely not have approved the terms of the current debate over deep fakes and revenge porn, but the vigorous clash of principles can yield surprising results and remains one of the great strengths of our system.