You have probably seen ads for AI image generators on social media and are wondering about the legality of that and how it can be legally used. Most of that remains unclear; today, it is possible to put major public figures into images and photos potentially doing compromising things. While on the one hand, this can be used in ugly and nefarious ways. On the other hand, it casts doubt on the veracity of all images.
Revenge porn, child pornography, and other illegal forms of pornography seem now to have a legal avenue into the mainstream. While AI art-generating sites will prevent images with nudity from being generated, it remains within the realm of possibility to create images of an ex or illegal pornography for personal use. What does the law say about this?
It is illegal
In order to generate a fake Van Gogh, you need to train the database with all of Van Gogh’s paintings. The AI then takes thematic elements, style, and other factors into account when generating an image of its own. The image uncannily creates something unique out of Van Gogh’s style.
This is why it is illegal. The AI must be trained with real images to produce fake ones. The data within the database is therefore unlawful. The act of placing illegal pornography into the database and then generating images from it is actually manufacturing and producing child pornography.
So, the law will argue that the crime is not victimless, even if the victim is far removed from the product of the material or was perhaps never involved in the production.
Deepfakes and Revenge Porn
If revenge porn is illegal in your state, that is because it is illegal to disseminate without consent. It remains legal to produce. The rest of the matter is tied up in copyright law which is significantly more boring than what we are discussing now. Nonetheless, copyright law does not apply to “transformative” works. However, the publishing of someone’s “visage” to promote something without their consent may still be actionable.
In most cases, state law does not protect victims of deepfake technology from the dissemination of pornographic materials. At this point, constitutional challenges to deepfake production have failed. Of course, once people realize that you can’t prosecute individuals for possession of deepfaked child pornography, it is likely that the law will change. Production may remain illegal depending on how it was produced.
As of right now, it is the companies that are ensuring their forums are not used to produce illegal pornography.
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