Could you imagine that face on that body? : A study of deepfakes and performers’ rights in EU law

Abstract: The natural desire to express the human experience through song, dance, speech and movement have characterised culture and society throughout history. From frantic dances around fires, to comedies and dramas at the ancient theatres, to sold out arena concerts, all driven by the same fundamental spirit of creation and expression. The unification of intellectual creation and physical action that constitutes a performance were for a long time only a transient activity, but that all changed with the introduction of recording technology. To protect the economic and moral interests of performers, a new form of intellectual property right, known as performers right, was introduced. This new form of IP-right was based on a similar rationale as the one for copyright protection of artistic and literary works, and it allowed performing artists to exercise a certain degree of control over fixations of their work. The modern development of image manipulation has come to challenge the integrity of performers rights however. Deepfakes is a form of AI-assisted technology that has made the synthetic manipulation of images, sound and video possible in ways previously unseen, in terms of quality, quantity and accessibility. The manipulation of videos by changing faces or voices of individuals raises a number of questions in a variety of legal areas. In order to bring clarity to the relation between deepfakes and performers rights, the condition under which a deepfake can constitute an infringement, and a granter, of performers rights under EU law, was investigated in this thesis. By primarily relying on a legal dogmatic method to interpret and systematise the existing EU legislation, case law and international treaties in the field of intellectual property, the synthetic manipulations of recorded performances were studied in relation to the applicable law. It was concluded that deepfakes may infringe on the rights of performers if the manipulated content constituted a reproduction of a fixation of a performance. Furthermore, it was also established that a deepfake in itself can not constitute a source of performers rights, due to its synthetic nature