Panitch Schwarze | Harnessing Copyright Law to Tackle The Growing Threat of Deepfakes

By Julianna L. Hunt, Associate, PANITCH SCHWARZE

Denmark has taken a stand against the widespread popularity and growing concerns associated with deepfake technology – technology relying on artificial intelligence (AI) tools to generate images, videos, and audio recordings which, although technically fake, appear convincingly realistic.  Pop culture icons Scarlett Johansson and Tom Cruise, as well as recently deceased Pope Francis, have all fallen victim to bouts of incredibly unsettling and deceiving deepfakes created and subsequently circulated without prior consent or authorization.

In light of ongoing AI advancements, the overall quality and inherent ability of deepfake-generated media content to compellingly portray an individual’s unique appearance, mannerisms, and even voice have likewise improved.  While these technological advancements are impressive, recent generative AI development in this particular area raises grave concerns from a personal privacy perspective by threatening the protection of one’s own image, likeness, and right of publicity, while also contributing to exploitation of deepfakes for malicious, dangerous purposes.

Denmark’s Approach of Amending its Copyright Laws

Inspired by Danish Culture Minister Jakob Engel-Schmidt’s pioneering effort to curb the abuses of deepfake content from digital platforms, the Danish government has proposed an amendment to Denmark’s copyright laws for public comment and review in advance of formal submission to the Danish Parliament this upcoming Fall.  According to Minister Engel-Schmidt, the proposed changes to the Danish copyright law, first introduced in June 2025, would give Danish citizens “the right to your own voice, your own facial features, and no one can copy that without your consent.”  Thus, if adopted, the proposed legislation would not only make it illegal to share the deepfake content of another person without their consent, but also render the very existence of deepfakes a violation of a person’s right to protect their own image and likeness from manipulation.

Additionally, the bill would make social media companies responsible for removing offending deepfakes from their platforms, authorizing the enforcement of serious financial penalties on social media companies in the absence of compliance, with potential escalation to European Commission oversight.  Individual users posting offending deepfake content on social media platforms, however, would not be penalized under the newly proposed copyright law.  Further, in anticipation of free speech challenges to the proposed bill, the Danish government has carved out an exception for creative works such as parody and satirical content.

By expanding copyright law to give Danish citizens more control over their own likenesses, thereby authorizing Danish individuals to demand removal of deepfake images, videos, and audio recordings from social media platforms, Denmark is taking a proactive approach to mitigating the harms caused by deepfake technology.  Unlike existing laws around the world which instead assume a more reflexive and defensive role by enforcing punishment after the harm has been committed, the proposed Danish bill endeavors to prevent misuse of unauthorized digital forgeries at the outset by giving individuals more control over their own “intellectual property identities.”

Global Impact – Will the United States Adopt a Similar Approach?

Since first introducing the proposed amendment to Denmark’s copyright law, Minister Engel-Schmidt has acknowledged that the bill “send[s] an unequivocal message that everybody has the right to their own body, their own voice, and their own facial features, which is apparently not how the current law is protecting people against generative AI.”   Denmark’s proposed legislation is undoubtedly unlike any other framework in the world, as Denmark would be the first country to explicitly grant its citizens rights over their digital likeness.

It remains to be seen whether other global authorities, including the European Union, will follow suit and adopt similar forms of digital rights protection.  In 1998, the United States updated its own copyright laws to specifically address the challenges of the digital age with its enactment of the Digital Millenium Copyright Act (DMCA) – a federal statute which addresses a range of copyright-related issues implicated by the expanding use of technology and the Internet.  However, while the United States’ current legal framework provides protection for the creative works themselves (e.g., digital photographs, videos, and audio recordings), protection does not extend to a person’s inherent identity.

Compliments of Panitch Schwarze Belisario & Nadel LLP – a member of the EACCNY