Your Face, Your Body, Your Rights. Rethinking Copyright for the Deepfake Era

You should be able to prevent a stranger from making a convincing video of you saying something you never said. The same principle should cover a fabricated intimate image, a cloned voice authorising a payment and a synthetic body used to sell a product without permission.

The intuitive response is to copyright your face and body. That phrase captures a legitimate demand for control. Turning it into workable law requires greater precision. A person must have an effective remedy even when the replica was generated without copying a photograph or recording that the person owns.

Where copyright reaches its limit

Copyright generally protects qualifying creative expression. Under the US framework, 17 U.S.C. 102 concerns original works of authorship fixed in a tangible medium. A person's natural appearance does not become such a work simply because it can be photographed or reproduced digitally.

A photograph may have a copyright owner whose rights differ from those of the person depicted. An unauthorised replica may injure the subject without reproducing enough protected expression from any particular photograph to sustain a copyright claim. Requiring that person to acquire a photographer's rights before seeking relief would leave the central injury unanswered.

Other protections already exist. Depending on the jurisdiction, privacy, image rights, publicity rights, data protection, fraud and laws addressing intimate imagery can apply. Germany's portrait rules, for example, begin with a consent requirement for dissemination or public display, subject to statutory exceptions. These protections have different conditions and purposes. They do not automatically produce a uniform cross-border remedy for every synthetic replica.

The US Copyright Office's 2024 report on digital replicas recognised gaps in protection and recommended a new federal right. That recommendation provides a useful foundation for debate. The proposal developed here is for an enforceable personal right over realistic digital impersonation, rather than an assumption that existing copyright already covers the human body.

A right held by the person depicted

The right should belong to every individual, regardless of fame, occupation or the commercial value of their image. It should cover an identifiable face, recognisable bodily appearance and voice where a synthetic or materially altered representation falsely attributes speech, conduct or participation to that person.

The decisive question should be whether the replica represents an identifiable individual in a way that requires their authorisation under the proposed law. Generic resemblance, ordinary artistic influence and depictions of fictional characters should not become claims over human features. A person should gain protection against impersonation without acquiring a monopoly over a hairstyle, expression or body type.

Consent should identify the permitted use, medium, duration and any right to sublicense. Permission to take a photograph should not silently authorise a digital actor for an unrelated advertising campaign. A licence for a film should address whether the likeness can later be used in political messaging or intimate material. Such uses should require separate, express agreement.

Protection without permanent alienation

The core right should remain attached to the individual. Licences could permit defined uses while preventing a broad contract from permanently stripping someone of control over their digital identity. Particular safeguards would be needed for children, employment relationships and agreements made under serious bargaining pressure.

Posthumous protection would require a defined duration and a clear rule identifying who can enforce it. The law should prevent uncertainty over estates from producing an indefinite veto over history, biography or cultural expression.

Remedies that work before the damage spreads

A victim should be able to seek urgent, proportionate removal or restriction of an unlawful replica while preserving the evidence needed for a claim. Courts should be able to award compensation and, where justified, account for profits attributable to the misuse. A rapid process should include a genuine route to contest an erroneous removal request.

The obligations of a creator, commissioning business and hosting platform should be defined separately. Platforms need a notice procedure that identifies the person, the material and the alleged lack of authorisation. Liability rules should distinguish deliberate distribution from other involvement and address what happens after a sufficiently substantiated notice.

Cross-border enforcement deserves its own provisions. The relevant court, applicable law and recognition of orders cannot be left to the hope that a foreign platform will cooperate. Equally, worldwide removal should not become an automatic response where a narrower order adequately protects the right.

Leave room for expression

Journalism, documentary work, research, art and satire require carefully drafted protections. A public figure should not be able to suppress reporting merely because an image is uncomfortable. Clear parody should have room to operate. Labelling can reduce deception, but a disclaimer should not by itself legalise a fabricated intimate depiction or an unauthorised commercial endorsement.

The aim is a practical legal entitlement to resist being made to perform, speak or participate through a realistic digital substitute without lawful justification. Copyright offers useful ideas about licensing and enforcement. A personal digital replica right would place the remedy with the person whose identity has been used.