Deepfakes and Dog Toys: First Amendment Defenses under the Rogers Test after Jack Daniel's v. VIP Products

Deepfakes—a combination of the words “deep learning” and “fakes”—is a twenty first century term for images, video, and audio recreations of the image and likeness, and sometimes the voice or performance attributes, of celebrities, politicians, and other persons. Contemporary generative artificial intelligence (AI) tools for image creation (e.g., DALL-E 3, Midjourney, Stable Diffusion), AI generated video (E.g., Open AI’s Sora, VideoGen, RunwayML), and AI generated audio, voice, and musical performance (e.g., Suno, RVC WebUI, Udio, Altered, ElevenLabs), have increased the speed and ease with which people can “fake” the appearance, voice, performances, and actions of real people. Whether one views these generative AI tools as a massive step toward the democratization of creation or a ridiculously fast and easy way to exploit the good will of companies and celebrities, interfere with the reporting of facts, or commit a myriad of crimes, the technology is present and only going to improve from where it is today.