A Real Account of Deep Fakes

Authors

Benjamin L.W Sobel, University of Wisconsin Law School

Abstract

Laws regulating pornographic deepfakes are written to prohibit “digital forgeries,” “false” images, or media “indistinguishable” from “authentic” recordings. Yet the typical anti-deepfake law covers materials that aren’t forgeries, aren’t false, and that reasonable observers can easily distinguish from authentic recordings. Though drafted as if they regulate statements of fact, anti-deepfake laws actually target certain outrageous depictions per se—and rightly so, because pornographic deepfakes cause harm irrespective of their truth or falsity. However, the inapposite language of facts results in statutes with crucial ambiguities. Moreover, because anti-deepfake laws ban outrageous depictions irrespective of the factual assertions they make, they differ fundamentally from the information-privacy and defamation regimes that they superficially resemble. Instead of regulating true or false disclosures of fact, anti-deepfake laws fall into a distinct and disfavored category: laws that forbid expression because it is outrageous.

This Article begins by excavating the internal tension of anti-deepfake statutes and explaining the laws’ theoretical underpinnings. It shows that the laws mean to redress highly offensive appropriations of likeness, but employ the incommensurable vocabulary of a different dignitary harm: the circulation of facts about persons. The Article then uses semiotic theory to explain how deepfakes differ from the media they mimic and why those differences matter legally. Photographs and video recordings record events. Deepfakes merely depict them. Justifications for regulating records do not necessarily justify regulating depictions. Many laws—covering everything from trademark dilution to flag burning to “morphed” child sexual abuse material (CSAM)—have banned outrageous depictions as such. Several remain in effect today. Yet when such bans are challenged, courts mischaracterize imagery to sidestep constitutional scrutiny: Courts pretend fictional depictions are factual records. Anti-deepfake laws resist this dodge. Courts considering these laws will be forced to confront head-on the extent to which a statute may ban outrageous expression as such.

Recommended Citation

Benjamin L. Sobel, A Real Account of Deep Fakes, 124 Mich. L. Rev. 871 (2026).
Available at: https://repository.law.umich.edu/mlr/vol124/iss6/2