Jazmín Esquivel
The boom in Artificial Intelligence has the world talking about its potential to create, develop, maximize and make our lives easier through tools such as robots to carry out routine tasks and even optimize processes automatically and without human intervention. At the same time, the issue raises concerns about possible violations of certain rights, such as intellectual property and data privacy. However, the boom is so great and the rate at which it is growing so exponential that the legal sector has had to reconcile this voracious reality with the existing regulatory structure, seeking a harmony between the two.
Among the uses of AI, we find a phenomenon known as “deepfakes” which becomes relevant if we look at it from the perspective of its impact on Intellectual Property, and whose analysis will be the subject of this article.
I- What is a Deepfake?
The World Intellectual Property Organization[1] defines deepfakes as “a technique based on artificial intelligence that synthesizes multimedia content. This includes the superimposition of human features on another person’s body (and/or the manipulation of sounds) to generate a realistic human experience.”
Social networks have been the main promoters of deepfakes, with TikTok being one of the most distinguished applications in popularizing these AI-made videos, generating hundreds of thousands of views. Celebrities and public figures are the most commonly used in the creation of deepfakes, according to data provided by Kapwing[2], a video creation platform, which states that in 2024, President Donald Trump had a reach of 12,384 thousand videos, Elon Musk reflected 9,544 creations and Taylor Swift 8,202. All these videos generated with the image and voice of these personalities are used to create videos that never really happened.
The appeal of deepfakes seems to lie in modern marketing, where, through social networks, brands are offered the opportunity to create creative content about their products, attracting the attention of users of this platform. Companies that use social networks as a marketing tool have a more direct interaction with their consumers. However, deepfakes are also used by countless people who want to create content that will allow them to gain followers, which will eventually generate some profit.
We can conclude, then, that Artificial Intelligence has proven to be a valuable tool in many ways and especially in the world of marketing, and its use can be considered positive. However, it is necessary to understand that regulation is required to prevent the infringement of certain rights, including Intellectual Property rights. This represents a significant challenge for its implementation, hence the need to give visibility to the primary risks that emerge when putting it into practice.
II- Possible risks
In an assessment of the main risks generated by the use of people’s image and voice in deepfakes, studies carried out by the Barcelona Business School [3] and the World Intellectual Property Organization1 have highlighted the following:
- Consumer distrust: Seeing content of non-real people promoting specific brand products can lead the consumer to consider that context as misleading or manipulated, creating an adverse effect on the consumer. What might a consumer of skin care products think, for example, if the person promoting the product is not a real person? Will the product be reliable? Will it work on me in the same way? These questions can undermine brand loyalty and affect the brand.
- Bad publicity: The previous point inevitably leads us to this second risk, which is that the use of people’s images without their consent, together with the promotion of the brand, could generate doubts in consumers about the quality of the brand. Consumer sensitivity is a key aspect to consider when creating advertising. Today’s consumers are more critical of brand content and this could generate a negative reaction.
- Ethical issues: In this sense, the questions revolve around the alleged misuse of people’s image and voice. In most cases there is an absence of consent, and if the image of these people is affected, as the content has been generated by Artificial Intelligence, it is difficult to pinpoint those responsible so that they can be held accountable for the damage caused.
- Violations of privacy: Using someone’s image without their consent can violate this right, which could cause personal damage, especially if an embarrassing or offensive deepfake is created.
- Legal risks: These risks include those generated by any violation of privacy as well as intellectual property rights, including copyright and image rights.
III- How are Intellectual Property and deepfakes intertwined?
According to Costa Rican legislation, image rights are protected both in the Political Constitution in Article 24, which states that “The right to privacy, freedom and secrecy of communications is guaranteed…” as well as in the Regulations to the Law on Copyright and Related Rights, Law 6683 in article 148 where it is stated that “Everyone has the right to prevent their bust or portrait from being exhibited or put on the market, without their express consent or that of the persons mentioned in article 15 of this law”, the latter norm being the one that most directly associates deepfakes with Intellectual Property.
It is therefore image rights that link deepfakes most closely to certain aspects of intellectual property, mainly due to how it is contemplated in the regulations, but also due to other rights that may arise from the creation of such videos. The use of the image, the copyright for the music used, extracts from protected literary works used as a complement in the text included in the videos, and even trademark rights possibly used in them, are all products of Intellectual Property, hence the relevance of understanding the scope of use in deepfakes and the associated risks.
The world advances together with technology, an inevitable power that drives disruptive innovations such as Artificial Intelligence and its multiple tools. However, this progress brings with it the primary challenge: to guarantee its ethical and responsible use to avoid possible negative consequences. Artificial Intelligence is transforming the legal sector, just as it has done in medicine, education and industry. In this context, Intellectual Property plays a crucial role, as it faces new challenges related to the protection of various rights such as those mentioned throughout this article. Taking on and addressing some of these challenges will be essential to balance innovation with the protection of individual and collective rights in the digital age.
[1] The World Intellectual Property Organization: https://www.wipo.int/es/web/wipo-magazine/articles/artificial-intelligence-deepfakes-in-the-entertainment-industry-42620
[2] Kapwing: https://aristeguinoticias.com/0610/kiosko/donald-trump-elon-musk-y-taylor-swift-los-famosos-mas-deepfakeados-en-2024/
[3] The Barcelona Business School: https://eneb.es/deepfakes-en-marketing/#:~:text=Marketing%20en%20redes%20sociales&text=Los%20deepfakes%20pueden%20ofrecer%20a,la%20interacci%C3%B3n%20con%20suaudiencia