USPTO to Do a Deep Dive on Deepfakes

The United States Patent and Trademark office (“USPTO”) has stated that it will be holding a roundtable on August 5, 2024, to address whether current laws are sufficient to protect individuals from the unauthorized reproductions of their voice, image, or likeness commonly referred to as “deepfakes.” The USPTO is seeking public input, and members of the public are invited to speak both in-person and virtually at the roundtable event.

Deepfakes are becoming a hot-button legal issue and are at the forefront of much AI discussion. One reason for this is the current election cycle, with concerns about the use of generative AI to create audio, video, or images of political candidates apparently doing or saying things which never actually occurred and may be harmful to their campaign or their position. Deepfakes are also used to create fake videos and images of celebrities, which can often be harmful to their reputation. Of course, while the commentary tends to focus on politics or other newsworthy individuals, there is equal concern that such deepfakes could be used in non-public contexts as well. One can envision a situation where deepfake evidence could be used in civil or criminal litigation, or in a divorce or custody proceeding, potentially dramatically altering the outcome if the deception is not identified.

The stated purpose of the USPTO is to see if these types of issues can be addressed by current laws. What protections and remedies do laws currently make available to victims of deepfakes? Depending on the nature of the faked audio, image, or video and/or the sources used to create the fake, there may be trademark or copyright claims available. However, the primary remedies available are claims under rights of publicity and rights of privacy laws, which can vary widely from state to state. Currently, no federal law exists, and with the wide range of protections available, or even if such protections are available, depending on a person’s jurisdiction, the ability to control and remedy deepfakes can be complex. Because of this, however, several other, often bipartisan, bills have been proposed in Congress to address these deepfake issues.

This plethora of state and federal laws and proposals is one of the topics the USPTO plans to address at its roundtable. The USPTO is requesting input on whether Congress should pass a federal Name, Image, and Likeness law to protect individuals, and if so, should such a new federal law preempt current state laws. The USPTO is further seeking comment on what elements should be included in a proposed federal law, and the First Amendment considerations of any proposed rules.

As stated above, all members of the public are invited to speak on this issue, but to do so, one must submit a request to the USPTO via [email protected]. However, while we wait for guidance from the USPTO or action on any pending bills, the attorneys at Stites & Harbison, PLLC stand ready to assist with any deepfake or other right of publicity issues.

Additionally, Stites & Harbison's full-service Intellectual Property & Technology Group regularly assists clients in the acquisition, management, licensing, and litigation of patents, copyrights, trademarks, and trade secrets. For questions, comments, or assistance with any intellectual property-related matters, please contact the author or any of the other attorneys in the IPT Group.