Artificial Intelligence makes it easier than ever to fake someone’s voice, face, or entire identity. These AI-generated “deepfakes” can copy a person’s speech, movement, and image so convincingly that many people can’t tell the difference. That raises an important question: if someone makes a deepfake of you, how can you make them stop?
The Patchwork of State Laws
The problem is that deepfake protections are not consistent across the country. Some states have strong deepfake laws, some of which may even hamper legitimate businesses and online commerce. Others have none at all. There is no single federal law that clearly protects against unauthorized deepfakes. That makes enforcing your rights harder, especially when the person using a deepfake of you in another state. Depending on how the deepfake is used, you may have a cause of action under one of more of the following state or common law causes of action:
Right of privacy – Protects your private information
Right of publicity – Prevents commercial use of your image without authorization
Defamation – Prohibits false statements that damage your reputation
False light – Addresses emotional distress caused by a misleading impression of you
47 states have enacted some type of deepfake law. These laws typically cover one of five types of deepfake use:
Nonconsensual sexual deepfakes – May cover both adult and child images or videos
Political deepfakes – Prevents deceptive imagery, often right before an election
Digital replicas – California prohibits certain “digital replicas” of people without proper protections in place
Criminal laws – Pennsylvania criminalizes disseminating deepfakes with fraudulent intent
What About Federal Law?
Although there should be, there is currently no federal law preventing deepfakes. That means you may have to look to other laws to see if they fit your particular deepfake issue. Federal trademark law (like the Lanham Act) can sometimes protect people from false endorsements. But it mainly helps celebrities or people with commercially recognized identities. If you are not famous, federal law likely will not protect you from deepfakes. The FTC has also promulgated rules against deceptive endorsement, but it may be difficult to get the FTC to investigate a particular deepfake. You may also have a cause of action under state and federal unfair competition laws.
Take it Down Act – Forces websites to take down non-consensual imagery
Copyright law- If the deepfake is based on third-party copyrighted material
Why Deepfakes Are Different
Deepfakes created by AI can spread quickly and look real. Once they are online, they are hard to stop. AI also makes it cheap and easy to create fake content using your likeness, making the problem worse. Existing privacy, publicity, and defamation laws were not built to handle this kind of high-tech impersonation.
What Can Be Done?
In 2024, the U.S. Patent and Trademark Office (USPTO) held a roundtable on deepfakes. Speakers from the entertainment, sports, and tech industries called for stronger laws. They urged Congress to create clear national rules to protect people from deepfake misuse. The USPTO is now preparing recommendations for how lawmakers and regulators can better protect your identity in the AI age.
The Streisand Effect
As with certain types of defamation, filing a lawsuit may direct a lot of unwanted media attention at what was previously an isolated issue. Most deepfakes, while making an initial splash, slowly fade away in a short period of time, as the internet seeks the next new thing. The last thing you want to do is to fan a dying fire and keep your deepfake on everyone’s mind. While ignoring a deepfake may be tough to stomach, it may be a better idea than driving the entire internet to take a look at the deepfake that is causing you so much angst. Before you take any action regarding a deepfake, ask yourself what is your end goal, and whether ignoring the deep fake might be the best means to accomplish that goal.
What Should You Do Now?
If you are concerned about someone using your name, face, or voice in a deepfake:
- Keep detailed time-stamped records of any unauthorized use
- Contact an attorney with experience in deepfakes, defamation, and AI issues to determine which state and federal laws may protect you
Until new federal laws are passed specifically addressing deepfakes, the best protection is staying alert and getting legal help quickly.
Final Thoughts
Deepfakes are here, and they are only getting more realistic and more common. While existing state and federal laws offer some protection, they often fall short when it comes to AI-generated impersonation. Stronger laws are needed. But for now, understanding your existing rights under the various state and federal laws and acting fast may be your best defense.
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