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DMCA Take Down of Kardashian Deepfake Raises Copyright Fair Use Questions

Deepfakes create compellingly realistic fake videos. The process uses machine learning techniques to manipulate images, often of people and celebrities, by combining aspects of new images with existing source images. Earlier this week, Condé Nast successfully used the Digital Millennium Copyright Act (DMCA) to take down a deepfake of Kim Kardashian on YoutTube that used Condé Nast’s original video of Kardashian as its source. The deepfake (still available on Instagram) is clearly a parody: Kardashian is shown saying “I genuinely love the process of manipulating people online for money.” The DMCA is designed to protect copyright holders, but the 9th Circuit has held, in a 2015 case involving a YouTube video of a toddler dancing to a Prince song, that a rights holder must consider whether the use of its work was a fair use before submitting a takedown request. It is not clear Condé Nast did that here, nor whether the creators of the deepfake have yet contested the takedown, if their video could be considered a transformative fair use for the purpose of criticism. This is one of the first successful uses of the DMCA to address deepfakes on the internet, but it remains to be seen whether this tool will be useful for rights holders, given that copyright law allows a degree of copying under fair use principles.