It appeared to be another of MrBeast’s elaborate and expensive stunts: a TikTok video of the YouTube star, clad in a pink hoodie and black baseball cap, directing viewers to click a link and cash in on “the world’s largest iPhone 15 giveaway.”
But the video was an AI “deepfake” that manipulated MrBeast’s face and voice to sell the giveaway.
“Lots of people are getting this deepfake scam ad of me... are social media platforms ready to handle the rise of AI deepfakes?” MrBeast said in a social media post on X, the platform formerly known as Twitter. “This is a serious problem.”
Tom Hanks also found an AI version of himself promoting a scam dental plan. The actor warned his followers in an Instagram post to “BEWARE!!” of the trick.
Phony celebrity endorsements are increasingly common as AI makes it easier for scammers to swap in a well-known likeness to hawk their products or services. Attorneys vigilant about protecting their clients’ likenesses are encountering a familiar problem. A cease and desist letter might get one taken down, but more are certain to crop up. One lawsuit playing out in California, though, could make it easier for celebrities to target the most egregious fakes.
The closely watched case targets the AI app called Reface, which allows users to digitally paste their face over the faces of athletes and actors in images and videos. The lawsuit is one of the first to confront the legal implications of AI technology, and it could prove useful to people seeking to wield state right-of-publicity laws against deepfake advertisements.
Face Swap Lawsuit
Kyland Young, a finalist on the CBS reality TV show “Big Brother,” filed the proposed class action in Los Angeles federal court in April, alleging that Reface profited from his image and likeness without consent. He argued that the app advertised paid subscription versions of the software.
US District Judge Wesley Hsu denied Reface’s motion to dismiss the suit in September. He rejected the company’s argument that the app should receive First Amendment protections because users create new artistic expression like funny videos and memes using the face-swapping technology.
Eleanor Lackman, an intellectual property attorney at Mitchell Silberberg & Knupp LLP, said she wasn’t surprised by the ruling. While California’s right-of-publicity law has strong free speech exceptions, Reface’s alleged use of Young’s image in an ad was enough of a “commercial hook to keep the case going and not have it dismissed at an early stage.”
“In situations where you have to sell a product with someone’s image, it becomes more clear cut,” she said.
Cost of Litigating
Many celebrities likely won’t resort to litigation against every perpetrator of deepfake scams on social media, attorneys say. Unlike the Reface lawsuit, which was filed against a company that creates deepfake software, finding and suing anonymous social media users is resource intensive.
Whether filing a lawsuit in these cases is worthwhile remains a “tough question,” said Los Angeles-based Venable LLP partner William Briggs because California’s statutory damages aren’t high unless a litigator can prove that a company profited greatly from the false endorsement.
“If it was a huge hit, and you can presume that these people made millions of dollars, then it would definitely be worth it to litigate the case,” said Briggs, who represents high-profile celebrities and whose firm hosts an entire department dedicated to “scouring the internet” for deepfake advertisements. “But, for the most part, cease-and-desist letters work, particularly with a lot of the legitimate social media websites.”
Stars are particularly susceptible to AI-generated product endorsements or phishing schemes driven by content farms, said Manatt, Phelps & Phillips LLP entertainment partner Joseph Anderson.
“If you are trying to get a large number of people to click on the wrong thing, an easy way to do it is to drive their attention by playing off of humanity’s interest in celebrity,” he said.
Lackman said most large platforms will comply with takedown requests based on violations of publicity rights or deceptive advertising practices.
But the challenge becomes more difficult with less reputable or foreign websites. Attorneys sometimes have to go to website-hosting services or turn to a network of international attorneys.
“It’s really a question of keeping the pressure on in as many ways as possible,” Lackman said.
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