
With questionable copyright claim, Jay-Z orders deepfake parodies off YouTube - minimaxir
https://waxy.org/2020/04/jay-z-orders-deepfake-audio-parodies-off-youtube/
======
crazygringo
So if I understand this correctly...

 _YouTube_ took these videos down based on a copyright (DMCA?) claim. Which of
course isn't a court ruling or anything.

At the same time, no court would ever uphold this removal, because it
obviously falls under "parody" which is protected. (Otherwise shows like
_Saturday Night Live_ couldn't even exist.)

After all, the end result is no different from a really good vocal
impersonator. In fact, a really good impersonator will definitely do better.

It's disappointing that Jay-Z (or more likely some lawyer working for him) is
abusing YouTube's takedown mechanism this way.

But at the same time, I can see how this could seem particularly scary for a
performer. After all, if you've spent decades creating a recognizable
profitable persona... the idea that anybody with a personal computer can flood
YouTube with fake lyrics that aren't yours could feel terrifyingly like losing
control of everything you've built.

What if some really nasty stuff went viral and became as associated with Jay-Z
as the rest of his stuff? Stuff that did serious damage to his brand, which
"nobody could unhear"?

I genuinely wonder if deepfake technology will actually result in new
copyright restriction law. I.e. to make it a crime to produce unlicensed
deepfakes that are genuinely indistinguishable to the average person,
regardless of whether they're parody or not. (While "bad" parodies like _SNL_
will continue to be protected as always.)

I kind of feel like that's going to have to be the outcome at some point in
the near future -- in fact, as soon as really convincing yet nasty deepfakes
of senators and representatives start making the rounds and spreading on
Facebook, I suspect a new law will get passed _incredibly_ quickly.

~~~
sandworm101
>> as soon as really convincing yet nasty deepfakes of senators and
representatives start making the rounds and spreading on Facebook, I suspect a
new law will get passed incredibly quickly.

No. This isn't a new area of law. Legal "Deepfakes" have been around a long
while. There is even a supreme court case covering the matter: Falwell, 1988.
That involved a fake interview with Billy Graham, using his image and putting
words in his mouth. If the 1988 supreme court wouldn't protect the reputation
of a national religious leader, they aren't going to do so for politicians
today.

[https://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell](https://en.wikipedia.org/wiki/Hustler_Magazine_v._Falwell)

This is from the movie, but it is accurate to what was said. This interaction
really did change supreme court procedure, introducing a far less formal back-
and-forth oral argument. Jokes were almost unheard of before this case.

[https://www.youtube.com/watch?v=MeTuNES82O0](https://www.youtube.com/watch?v=MeTuNES82O0)

The trial court argument:
[https://www.youtube.com/watch?v=TsvB61mDoG8](https://www.youtube.com/watch?v=TsvB61mDoG8)

~~~
burnte
No, deepfakes are relatively new. It's a specific term meaning a fake video
produced with ANNs, not any type of picture that's been faked or photoshopped.
The case you reference is a just and paste job, not a deepfake.

~~~
wtetzner
I don’t think the method of producing the fake is important in terms of court
rulings.

~~~
ehsankia
It kinda is though, if the network is trained on the source material itself.
For example if I take the source material and move a few pixels, is that still
the source material? What if I flip the video, which is technically moving
every single pixel, that's still the a copyright issue even if the video is
mirrored. The network is basically taking the pixels of the original content,
learning from it, and creating a filtered version.

~~~
wtetzner
I think you misunderstood my point. I meant that it doesn’t matter if someone
modified it by hand or if it was done using a neural network.

------
acomjean
Bette Midler sued ford back in the day (1988) for hiring an impersonator to
sing on an ad and won. (Of course it helped that Ford asked her to sing first)

[https://en.wikipedia.org/wiki/Midler_v._Ford_Motor_Co](https://en.wikipedia.org/wiki/Midler_v._Ford_Motor_Co).

"The appellate court ruled that the voice of someone famous as a singer is
distinctive to their person and image and therefore, as a part of their
identity, it is unlawful to imitate their voice without express consent and
approval. The appellate court reversed the district courts decision and ruled
in favor of Midler, indicating her voice was protected against unauthorized
use.[4][5]"

I was actually a little surprised. And this is different, but I think that
they're imitating a famous voice (as opposed to my voice...) means they become
a target.

The fact you can fake anyone saying anything is little amazing. though there
are people who can do it quite well:

[https://en.wikipedia.org/wiki/Josh_Robert_Thompson](https://en.wikipedia.org/wiki/Josh_Robert_Thompson)

Thompson's Arnold Schwarzenegger impression first gained national attention
during the California gubernatorial recall election of 2003. Posing as
Schwarzenegger, Thompson phoned in to Fox News Channel's morning program, Fox
& Friends, fooling the hosts into believing (at least for a short while) that
he was, in fact, Schwarzenegger.[4]

~~~
btilly
Then how are Elvis impersonators not a copyright violation?

~~~
ashtonkem
Or cover bands, for that matter.

~~~
bsder
I believe cover bands _can_ actually be in violation of copyright.

It depends upon how you do it.

If you cover the song, then that's one copyright.

However, if you hire a bunch of people because they actually look and sound
like the original band, that's a completely different copyright.

------
kauffj
CEO of LBRY here. These videos are welcome on LBRY.

We'll have to get a real (i.e. not me commenting on HN) legal opinion should
we get a take down request, but prima facie I don't see why these would be
illegal.

(If they are illegal and we are notified, we would put them on the company
maintained blacklist, as we cannot remove anything from the network itself.)

Edit: I wrote a rap on our perspective.

If you're having deep fake problems / I feel bad for you son

We got 99 deep fakes / And Jay-Z ain't taking down one

[https://twitter.com/LBRYio/status/1255273319739293703](https://twitter.com/LBRYio/status/1255273319739293703)

~~~
areoform
While I appreciate your hustle here, it might not be such a good idea to
become the hub for deepfakes and the endless lawsuits they will invite. The
deep ethical issues involved should make anyone pause, but taking on record
companies and artists should make you pause further.

Everyone loves Napster as a history lesson. But it is doubtful that anyone
would want to live it.

Your position seems to be inviting all of the controversy and lawsuits for
little-to-no payoff.

~~~
pc86
There are no ethical issues in deepfake videos that weren't existent during
the same infantile stages of faked and Photoshopped images on the internet.
Some people could pick them out immediately. Some people are fooled even by
obvious fakes. That will never change.

~~~
ineedasername
_> There are no ethical issues in deepfake videos that weren't existent during
the same infantile stages of faked and Photoshopped images on the internet_

That is _not_ the same thing as "there are no ethical issues". I'm sure some
people, especially the celebrities portrayed, would feel there are the _same_
ethical issues in all cases, and any difference is merely one of degree, not
kind.

~~~
pc86
We are saying the same thing. Literally in the sentence you quoted, I said the
same ethical issues exist in deepfakes that exist in altered still images.

~~~
ineedasername
Yes, but your comment has the potential to be read as dismissive of the
ethical concern. I don't know if that was your intention, but I thought it
relevant to make the distinction clearer.

------
basch
[https://www.descript.com/](https://www.descript.com/) and Lyrebird prevent
people from making copies of voices that arent their own, but it looks like
that cat is out of the bag.

Abuse potential notwithstanding, and ignoring the complete distortion of
"reality" coming soon, I'm extremely excited for this technology to become
more mainstream. Being able to edit audio and video, like you edit a word
document. Record a conversation for a couple hours, compile the transcript,
and synthesize it into something tight, all without the need for a traditional
video editor. Voice synthesis for words that werent spoken, or misspoken,
frame interpolation and morphing to prevent the jaggy youtube cutting effect.

~~~
randylahey
A YouTuber (carykh) made a video where he explains an algorithm he made to
automatically process lecture videos by speeding up, condensing and removing
parts of the video.

[https://www.youtube.com/watch?v=DQ8orIurGxw](https://www.youtube.com/watch?v=DQ8orIurGxw)

~~~
sneak
[https://s.sneak.berlin/@sneak/104054875133518950](https://s.sneak.berlin/@sneak/104054875133518950)

I want a YT speed setting for “constant WPM” based on their autocaption
timestamp metadata.

~~~
aspenmayer
That’s an amazingly obvious idea whose time has come. Who do we @ to get this
on YouTube already?

~~~
BrandonM
Overcast does roughly that for podcasts and it works great.

~~~
aspenmayer
Is there a similar feature in Google Podcasts? I know that they are
transcribing them automatically in the same way captions are generated for
YouTube videos. I think it mostly blew over but I remember Google caught some
flak for that in the same way they did for Google Books v Authors Guild
fiasco. This is why we can’t have nice things.

------
Animats
This was approached all wrong. The first highly publicized demos of singing
generated like this should have been of dead people - Michael Jackson, John
Lennon, Elvis. First, it's not clear who has the right to sue, and in what
jurisdiction. Rights associated with those people have been transferred and
resold enough times that there's no clear claimant. Second, many people have
impersonated those voices, so there's a strong argument that this is just
automating a manual process. Someone could have probably gotten a few tracks
out the door and onto airplay before the first litigation.

Going up against a living performer whose main asset is their vocal style
makes a weaker case. Living people have stronger publicity rights than the
estates of dead ones. This could result in a decision which expands the scope
of copyright. One of those weird copyright decisions, like the one where
Owens-Corning trademarked PINK, as a color, for insulation. Coloring
insulation was so unusual that it was held to be a valid trademark. Now there
are other copyright on colors. Bad cases make bad law.

This thing has been botched so badly that one wonders if it's a fake case from
the music industry to get a losing decision.

~~~
colechristensen
Deepfakes (a better term is needed) are by their nature derivative works,
which copyright already handles with the original's owner retaining rights
which have to be acquired. I have absolutely no problem with it. If you don't
own the copyright to your entire training data set, you are infringing by
publishing something the model produces as I see it.

The courts or the legislature are going to have to address how your rights to
your own image being synthesized like this, but again, I have no problem with
someone retaining the same sorts of original ownership rights when it comes to
derivative works that use data collected from them, beyond just who owns the
copyright to the works in the dataset. (voice, video, images, etc.)

~~~
akersten
> If you don't own the copyright to your entire training data set, you are
> infringing by publishing something the model produces as I see it.

Imagine if that were true - a human artist couldn't create anything, because
everything in the world around them is their training set!

I think it has to be a likeness test - if an average person would think its a
real Jay-Z music video, then it's a derivative work. Don't muddy it with the
implementation details of how it was made.

~~~
colechristensen
A human isn't a machine. What is in your head is sacred to the law. A neural
network algorithm and its data is not.

------
ex3ndr
Isn't parodies are explicitly excluded from requiring to hold copyright to an
object of a parody?

~~~
xoa
Yes but with complexities in general, and a collision with non-copyright
issues for deep fakes that starts to get into more unexplored societal/legal
territory. First, parody is part of Fair Use, which means that it's an
"affirmative defense": in a lawsuit, the burden is on the defendant to bring
it up and prove it. That's in contrast to ordinary defenses or arguments
around the facts asserted by the plaintiff, where it's up to the plaintiff to
prove them to whatever the required standard of evidence is. In practice, that
can mean a somewhat higher financial risk and higher chance of losing at the
edges.

Second though, parody (and Fair Use) is about copyright and trademark,
protecting use of such material for commentary and so on. But use of someone's
likeness directly, particularly for someone famous, in order to produce new
works is arguably something new that hasn't really been dealt with yet. Jay-Z
making a _copyright_ claim definitely seems dubious, and perhaps was done
simply for convenience rather then legal strength, copyright disputes are the
form in which most take down systems work. I can see arguments both ways for
whether copyright would apply at all: in favor, the argument would be that the
ML models are being trained via copyrighted works, which in turn makes them
derivatives. On the other hand, _facts_ are not copyrightable (in the USA)
regardless of effort or source. A counter argument would be that the ML models
are merely deriving facts about a person's vocal cord, facial structures and
other physical natural characteristics, which then create a factual physical
model which can be utilized to produce new works. In that case, all these new
deep fakes would be their own brand new copyright (and potentially the ML
models themselves not copyrightable). That'd be an interesting legal argument
to see hashed out.

But even if they're new copyrights, right to voice & likeness are issues in
some jurisdictions and certainly could be argued should be more so as
technology makes this easier. I think factors around threat to reputation and
so on also are raised in new ways with deep fakes vs remixing and adding
commentary to real, existing works (which can in turn be referenced by anyone
who sees the parody). Even if there is a disclaimer on the original deep fake,
as a de novo work which itself might get spread around without context it's at
least different then what we've had until now.

~~~
gnopgnip
>First, parody is part of Fair Use, which means that it's an "affirmative
defense": in a lawsuit, the burden is on the defendant to bring it up and
prove it. That's in contrast to ordinary defenses or arguments around the
facts asserted by the plaintiff, where it's up to the plaintiff to prove them
to whatever the required standard of evidence is.

This is a misnomer.

Fair use is an authorized use, and consequently is “distinct from affirmative
defenses where a use infringes a copyright, but there is no liability due to a
valid excuse, e.g., misuse of a copyright.” Id. Lenz, 815 F.3d at 1152

~~~
xoa
> _This is a misnomer._

No, I don't think so. Fair Use isn't merely a matter of court precedent, it
specifically is in the Copyright Act (17 U.S. Code § 107 [1]), the language of
which indicates it's on the plaintiff, and subsequent case law does seem to
have affirmed that unless you have something further to cite? What you cited
right there was Lenz v. Universal Music Corp, a 9th Circuit decision about
abuse of DMCA takedowns, and in turn considering the "under penalty of
perjury" aspect of the DMCA not "Fair Use" as a defense in general. The quote
you gave was in the _context_ of §512, Judge Tallman wrote that §512
"unambiguously contemplates fair use as a use authorized by the law". But
again that's specific to the DMCA, and even there while the 9th seemed to want
to try stemming abuse a bit, they only required the plaintiff to show a purely
subjective lack of belief in infringement. Which could be without any real
consideration of fair use factors at all. As well as being circuit only,
analysis at the time indicated that if anything it might encourage copyright
holders specifically to do as little as possible to consider fair use. Lenz
did appeal to SCOTUS on that question but certiorari was not granted. Harvard
Law had a fairly in-depth looking analysis [2].

In contrast for the 9th Circuit specifically in _Perfect 10 v. Amazon
/A9.com/Google_ [3] they explicitly covered Fair Use as an affirmative defense
where the burden was on the plaintiffs:

> _C. Fair Use Defense_

> _Because Perfect 10 has succeeded in showing it would prevail in its prima
> facie case that Google’s thumbnail images infringe Perfect 10’s display
> rights, the burden shifts to Google to show that it will likely succeed in
> establishing an affirmative defense. Google contends that its use of
> thumbnails is a fair use of the images and therefore does not constitute an
> infringement of Perfect 10’s copyright. See 17 U.S.C. § 107._

Additionally, I can find modern SCOTUS opinions such as in _Campbell v. Acuff-
Rose Music_ which support Fair Use as an affirmative defense:

> _The fair use factors thus reinforce the importance of keeping the
> definition of parody within proper limits. More than arguable parodic
> content should be required to deem a would-be parody a fair use. Fair use is
> an affirmative defense, so doubts about whether a given use is fair should
> not be resolved in favor of the self-proclaimed parodist._

It'd be nice if plaintiffs _were_ required to demonstrate as part of a suit
that there was not a fair use defense for the defendants, but I really don't
think that's the case nationally right now.

\----

1:
[https://www.law.cornell.edu/uscode/text/17/107](https://www.law.cornell.edu/uscode/text/17/107)

2: [https://harvardlawreview.org/2016/06/lenz-v-universal-
music-...](https://harvardlawreview.org/2016/06/lenz-v-universal-music-corp/)

3:
[http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/06...](http://cdn.ca9.uscourts.gov/datastore/opinions/2007/12/03/0655405.pdf)

~~~
gnopgnip
I understood the Perfect 10 case to be decided not on the merits and on a
pretrial motion, and that the standard for fair use is not the same. Almost
certainly the plaintiff will make a prima facie case, and an affirmative
defense is needed then only on the pre trial motion. If the case went to trial
the statutory text(arguably)does not require it to be raised as an affirmative
defense.

I agree that Campbell v. Acuff-Rose Music supports it as an affirmative
defense, but it is not the most modern case law even though it is the only
modern supreme court case. Mattel v Walking Mountain Productions in the 2nd
did not use fair use as an affirmative defense. Cariou v Prince, also in the
9th and denied certiorari is a modern case that did not depend on fair use as
an affirmative defense. In the appeal they did question whether fair use is an
affirmative defense specifically.

Would you say that congress intended fair use to be an affirmative defense?

------
rhema
Lots of examples of their synthesis here:
[https://lbry.tv/@VocalSynthesis:2?page=1](https://lbry.tv/@VocalSynthesis:2?page=1)
.

I've been thinking about the deepfakes as a kind of computational thinking
aid. We can all simulate reading text from the voice of random celebrities in
our mind's eye. How different is the ability to bring that imagination into
reality?

~~~
anon73044
What with Jeff Bridges in Tron and Peter Cushing in Rogue One, I'd suspect in
about a decade or so we'll begin seeing Disney movies with an almost full cast
of deceased CG actors, complete with their own voice.

~~~
braythwayt
I feel like I missed something--what about Jeff Bridges in Tron? Or are we
talking about Tron:Legacy, and the character of CLU?

~~~
anon73044
yeah, CLU is what I was referring to

------
codefisher
But we expect this don't we from YouTube? Just as an example of how broken it
is I have been live streaming at our local church, our parish priest decided
to sing "Tantum ergo" which was written and set to music at best guess 1264.
YouTube flagged it.

------
jedimastert
For my own edification, wouldn't trademark law be more applicable?

~~~
Reelin
I'm quite puzzled as well. As far as I can tell (not a lawyer) copyright law
shouldn't apply at all in this case. According to the article the actual works
performed were an excerpt from Hamlet (public domain) and a song by Billy Joel
(so someone likely has a valid copyright claim, but probably not Jay-Z).

On the other hand, it seems like it might well be an infringement of his
likeness (ie a trademark violation). I'm not sure about the nuances
surrounding trademark law though - does it have to make money, do intentions
matter, how obvious does it need to be that this is an impersonation, etc.

------
russellbeattie
One could argue that the audio used to _train_ the deepfakes was the actual
infringement, as it is essentially a copy of presumably copyrighted audio,
even if not republished in its original form.

This would be similar to the Google Books scanning issue. Their original plan
was to scan all the books in the world so users could search them. Though
Google did provide extended samples in the search results, the _core_ issue
was the scanning, which was literally a copy of the books into Google's
database without permission. This was considered infringement. [1]

Where the original sound comes from and who owns the copyright for that, I
don't know. Maybe the person used CNN videos, so Time Warner should be
involved as well.

1\.
[https://www.wikipedia.org/wiki/Authors_Guild,_Inc._v._Google...](https://www.wikipedia.org/wiki/Authors_Guild,_Inc._v._Google,_Inc).

------
javanscala
Wouldn't deepfakes have similar legal requirements as the Tupac hologram used
at Coachella? [http://www.ipbrief.net/2012/04/19/tupac-hologram-rocks-
coach...](http://www.ipbrief.net/2012/04/19/tupac-hologram-rocks-coachella-
and-ip-laws/)

------
INTPenis
Now maybe it's time for society to catch up and provide some sort of digital
identification method for citizens.

Sort of like keybase but from the government.

Because deepfakes should not be under assult for being parody. Instead artists
should be able to verify their own works in a secure manner.

Some countries have already started with this, mostly in the EU.

------
kentosi
Looks like the Jay-Z deepfake rap of Shakespear's "To Be, Or Not To Be" is
still 5 hours after this link was published on HN:
[https://www.youtube.com/watch?v=m7u-y9oqUSw](https://www.youtube.com/watch?v=m7u-y9oqUSw)

------
easton_s
I know its meant a a joke but Jay-z copypasta over a beat is legit cool.
[https://soundcloud.com/odyssey/jay-z-
copypasta/s-JRXSJCBFsPu](https://soundcloud.com/odyssey/jay-z-
copypasta/s-JRXSJCBFsPu)

So I get where he's coming from. If I heard this version first I would have
thought it was actually Jay-Z. The naked recording has all artifices of AI
generated voice but mixed into a composition they are gone to my ear.

And also there are a few moments that are surreal. A dragged out s at the end
of a phrase. Change of flow from smooth to a fast staccato. Fucking the
inflection was near perfect. There is something to this AI stuff.

------
Vaslo
Maybe this will get the Streisand effect and people will make scores of videos
saying all sorts of things, some not so nice...

------
paypalcust83
I hope Lawful Masses with Leonard French covers this.

I think YT may not have to do it legally, but they may still do it to keep
money happy.

------
sametmax
We really need a law that forces people to label fakes when they willingly
produce ones that are hard to tell from the real thing, and harshly punish the
ones that omit the label.

It's ok to fake stuff, but it should be clear that you are doing so.

We already have fake cars in advertising, fake food on menus, fake news, fake
expert advices... I really don't want to add perfect impersonification to the
list.

------
icu
The law is going to have to catch up here. Jay-Z has worked very hard to make
his 'voice fingerprint' have value. Having listened to the deepfake, it's an
extremely accurate copy of Jay-Z's voice. To what degree does Jay-Z's voice
constitute a 'work of art' and to what degree does a copy become a forgery?
You could say that an impression made by a real person is a 'work of art' but
if you remove a real person and use ML, is it still a 'work of art'? We really
need to consider the existential questions raised by primitive forms of AI and
consider what AGI means from a philosophical perspective before lawyers and
judges start defining what can be done with AI in society.

------
ec109685
Update to the article: “I just heard from Vocal Synthesis’s creator that the
copyright strike was removed, and both videos are back on his channel. He’s
not sure if YouTube reversed its decision or Roc Nation removed the claim, but
I suspect the latter.”

------
coverband
Sorry to dilute the topic but you’ve got to listen to Frank Sinatra singing
the “Navy Seals CopyPasta” with this technology. It’s the best thing I’ve come
across so far this month:
[https://youtu.be/8ixYcyslmSI](https://youtu.be/8ixYcyslmSI)

~~~
Rebelgecko
The video of 6 US Presidents performing NWA's "Fuck Tha Police"[1] is also
pretty incredible. Some of the older presidents (JFK, Roosevelt, Regan) are a
bit rough, presumably due to less training data. But even in FDR/MC-Ren's
verse you can hear echoes of his cadence when saying the "only thing we have
to fear is fear itself".

The Obama and Trump verses also have moments that sound uncannily realistic.

[1]:
[https://www.youtube.com/watch?v=mAZVp-n-5TM](https://www.youtube.com/watch?v=mAZVp-n-5TM)

------
00__00
If your image if your income, having it defamed via a deep fake or the image
rights, aka copyright is only fair. Can't understand why anyone would not back
a creator. So many on here are themselves working to create a unique creation
that they can live off of.

~~~
ineedasername
A human impersonator, clearly labelled as such, probably wouldn't have
received the same treatment. These videos were simply computer-assisted
impersonations.

~~~
rictic
A difference in quantity can become a difference in kind.

Consider a situation down the line where your phone can do this in real time,
and at a quality that is hard for the untrained ear to distinguish from the
genuine article.

It's not at all clear to me what the right thing to do here.

~~~
ineedasername
Me neither. Companies have been sued when they use impersonators in their ads,
but individual impersonators are generally left alone (excepting that they
license any songs etc by those they're impersonating)

Doing things computationally allows a scale that humans alone can't achieve,
and as you said that may make all the difference.

------
Rebelgecko
As an update, it looks like the videos are back up and the copyright strikes
are removed

------
gohbgl
Copyright is brain damage
[https://www.youtube.com/watch?v=XO9FKQAxWZc](https://www.youtube.com/watch?v=XO9FKQAxWZc)

------
kpennell
Does anyone have a mirror for these? They were super funny

------
bryanrasmussen
I thought Jay-Z had trademarked his image, if so couldn't he keep a deepfake
off with an argument that it is a computer generated version of his likeness?

------
SubiculumCode
This would be a great voice processing effect for musicians. Want that Grunge
Kurt Cobain sound to your vocal part? How about a Lennon?

------
erdos4d
Similar stories and even worse have been happening for years. I'm not sure why
this sort of thing registers as news anymore. I'd expect more ink if YouTube
actually said no to a copyright claim.

------
wayneftw
I went and found them and listened to them out of spite.

Thanks for bringing my attention to this Jay-Z!

------
echelon
Am I going to get sued for having a website that produces arbitrary deepfake
audio (Arpabet + Tacotron + Melgan) of Trump and Biden?

My opinion is that state actors can already do this. If we train the public
that "photoshop for audio and video" is a thing, then they'll learn to be
skeptical.

------
erynvorn
Who is Jay-Z ? Who cares ?

