Do deepfakes pose a golden opportunity? Considering whether English law should adopt California's publicity right in the age of the deepfake

Ansel Adams, the celebrated pioneer of landscape photography, observed that ‘not everybody trusts paintings but people believe photographs’. Whereas a painting is subjective, a photograph is accepted almost axiomatically as an accurate depiction of reality, and society’s faith in photography’s veracity has continued through its evolution to film and digital media. Indeed, when referring to the speed of frames shown in motion pictures, French filmmaker Jean-Luc Godard expressed that while ‘photography is truth, cinema is truth twenty-four times per second’. Even as photographers and film studios continue to push the boundaries of visual arts through Photoshop and computer-generated special effects, the public has largely been capable of appreciating the distinction between the fanciful from the factual and the artistic from the authentic. The deepfake video now challenges this paradigm and does so on an unprecedented scale. Some early commentary out of California1 suggests sui generis laws to address deepfakes are not necessary because existing legal doctrines are sufficient if applied correctly. This assertion is supported by the fact that California explicitly recognizes an individual’s legal right to control and commodify the expression of their image. As courts in the UK do not recognize such a right, one may query whether an individual can protect herself against a malicious deepfake under English law.2 From this question stems the idea that the ‘Golden State’ of California may be able to provide a ‘golden’ standard for image rights in the age of the deepfake. While comparisons between American and English image rights are not new, the novelty of deepfake technology warrants a renewed analysis. Furthermore, this article offers a departure from many others on the subject because it measures English laws against those of California specifically, rather than a survey of laws across several American states.