Ohio deepfake bill built on name image and likeness law raises First Amendment concerns
Two Ohio state lawmakers are looking to the state’s name, image, and likeness laws to address the spread of deepfakes.
They contend the provisions allowing a college football player to make money appearing in a commercial also offer a good framework to protect everyday Ohioans.
The sponsors portray their plan as a way to address a “growing threat” without reinventing the wheel, and their idea has the backing of Ohio’s attorney general. But the Motion Picture Association worries the changes will stifle free expression.
The proposal
Ohio state Rep. Adam Mathews, R-Lebanon, explained Ohio House Bill 185 removes a provision in Ohio’s NIL law limiting protections to people whose likeness has “commercial value,” when it used for a commercial purpose.
“This gives it to all of those that may not be Ryan Day, Joe Burrow, or other household names that get paid to be in commercials,” Mathews said.
He added that while the impetus for changes may be artificial intelligence, they’re proposal isn’t limited to deepfakes.
“It also applies if people were to use Photoshop (or) cutting pictures out and using a glue stick. It is tech agnostic. But it is there for that protection of your name, image and likeness.”
Under the bill, using anyone’s likeness without prior written consent is prohibited.
Obviously, using someone’s likeness for commercial gain, say, in an advertisement, without consent is off-limits, but the sponsors note existing exceptions covering literary, historic, and audio-visual work remain in place.
The bill also installs explicit penalties for the malicious use of deepfakes.
Still, what exactly counts gets murky.
The measure describes its scope as covering any production where “a reasonable trier of fact” would confuse the fake with reality.
Pushback
In written testimony, the Motion Picture Association argued it’s not enough to simply retain exceptions in state law.
Granting every individual sweeping protections over their likeness pushes the burden to a producer to demonstrate their work falls within one of the existing exceptions.
“This in and of itself is a substantial expansion of the right of publicity and materially shifts the balance from protecting free speech to protecting individual likenesses,” the association argued.
And relying on whether a reasonable trier of fact gets confused, the group said, could have sweeping implications.
“In the movie Forrest Gump, filmmakers used digital technologies to have the lead character encounter and converse with Presidents Kennedy, Johnson, and Nixon. In its current form, the bill makes such uses presumptively impermissible.”
The Motion Picture Association proposed several amendments.
First, the group doesn’t want to see Ohio’s NIL rights expanded to everyone regardless of commercial value.
Doing so would “permit individuals to prevent others from telling their stories, or to avoid critical or satirical portrayals, which are squarely protected by the First Amendment,” the association stated.
Additionally, the association wants to limit liability to those who “knowingly” distribute a deepfake recording with the intent to “harass, extort or cause physical harm” to another person.
Instead of maintaining existing speech protections, the association wants the sponsors to include explicit protections of work relating to the public interest, commentary, criticism, scholarship, satire, or parody.
Sponsor’s take
The bill’s sponsor Adam Mathews argued that the Motion Picture Association’s push to restore the commercial purpose language is a non-starter. Those changes would “gut the bill,” he said.
Meanwhile, his co-sponsor, state Rep. Ty Mathews, R-Findlay, claimed that the association’s First Amendment concerns are overblown.
“I believe that this bill is not going to really restrict their capability at all,” he said.
But in nearly the same breath, both lawmakers underlined the bill’s First Amendment implications.
“If some Hollywood filmmaker wants to create an image of you, Chairman (state Rep. Thad) Claggett, someday, they would need your permission, if they’re going to utilize your image in a disparaging way,” Ty Mathews said.
Rep. Adam Mathews chimed in, “it would be for the disparaging way, or any other way. If it weren’t disparaging, then they would just have to pay you for it and have that consent.”
The Motion Picture Association noted that courts have long recognized strong protections for parody or satire, “which are critical elements of protected speech.”
“Satirized portrayals of real-life individuals on television shows like Saturday Night Live and cartoon representations on shows like The Simpsons or South Park thus enjoy strong protections,” the association said.
Perhaps recognizing the problem, Ty Mathews attempted to walk back his statement.
“Maybe it was a bad example to use you as a public figure for that one,” he said. “Again, we do have specifically laid out here, protections of traditional satire.”
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