The US Ninth Circuit Court of Appeals upheld a TV personality’s class-action complaint that the app developer NeoCortext could not use his likeness to promote its smartphone app Reface, without the actor’s consent. Reface allows users to substitute their own faces “(in place of) the faces of celebrities in images and videos from TV shows, movies and other short-form media.”
According to court documents, Kyland Young, who starred in the CBS reality show Big Brother, “misappropriated” his likeness by using it in watermarked clips generated by a demo version of Reface.
The Reface application has a free version that generates watermarked “teaser” face swaps. The purpose of these teaser face swaps is to induce users to remove the watermarks by signing up for Reface’s PRO subscription and paying a fee of $5.99 per week or $36.99 for life.
Young’s allegations that NeoCortext made its database of clips searchable for specific individuals and that videos and images of him were in the database support a reasonable inference that NeoCortext knew it was using Young’s likeness.
Further reading
Kyland Young, Plaintiff v. NeoCortext, Inc., Defendant. Jury Trial Demanded. Case 2:23-cv-02496. Document 61. Memorandum: Appeal from the United States District Court for the Central District of California, Wesley L. Hsu, District Judge, Presiding. Filed December 5, 2024. US Court of Appeals for the Ninth Circuit.
Kyland Young, Plaintiff v. NeoCortext, Inc., Defendant. Jury Trial Demanded. Case 2:23-cv-02496. Document 1. Complaint. Filed April 3, 2023. US District Court for the Central District of California – Western Division.
Lawsuit Against Deepfake App Survi ves Anti-SLAPP Motion. Article. December 6, 2024. by Kimber Cooley, Associate Editor. Metropolitan News Enterprise (Los Angeles, CA)
Why it matters
California law recognizes an individual’s right of publicity, and prohibits companies from commercially using another person’s name, voice, photograph, or likeness without that person’s consent. NeoCortext violated this law by never asking Mr. Young or others similarly situated for their consent to commercially exploit attributes of their identities in these teaser face swaps or the paid PRO version of the Reface application
In addition, “The district court also … concluded that Section 301 of the Copyright Act does not preempt Young’s statutory right of publicity claim,” said the Appeal document.
