The Beijing Internet Court recently heard two cases of "AI face-changing" software infringement, which attracted widespread attention. The plaintiffs in the case are two Chinese-style short video models. They sued the operator of a "face-changing" APP for using their videos to create face-changing templates without authorization and paying for them, which infringed on their portrait rights and personal information rights. The court ultimately ruled that the defendant should compensate the plaintiff for losses and apologize. However, the determination of portrait rights infringement sparked controversy and triggered a discussion on the legal boundaries between AI face-changing technology and personal information protection.
News from ChinaZ.com on June 21: The Beijing Internet Court recently heard Beijing’s first two “AI face-changing” software infringement cases. The plaintiffs, Liao and Wu, are national style short video models. They accused the operator of a "face-swapping" APP of using their videos to make face-swapping templates without authorization and providing paid use in the APP, which infringed their rights. of portrait rights and personal information rights.
After trial, the court held that although the defendant used deep synthesis technology to process the plaintiff's video and replaced the face in the video, this behavior did not constitute an infringement of the plaintiff's portrait rights because the plaintiff could no longer be identified in the replaced video. However, the court also found that the defendant’s actions violated the plaintiff’s personal information rights.
The court pointed out that the facial features and other personalized information in the plaintiff's video were personal information, and the defendant's processing of this information through "face-changing" technology was an act of processing personal information. The defendant obtained and commercially used the plaintiff's personal information without the plaintiff's consent, which constituted infringement.
Ultimately, the court ruled that the defendant should apologize to the plaintiff and compensate for mental and economic losses. At present, the case is still in the appeal period and the first-instance judgment has not yet taken effect.
Trial referee:
The defendant did use the video in which the plaintiff appeared, but this did not constitute an infringement of the plaintiff’s right to portrait.
After court review, it was found that the defendant did not submit evidence to prove the source of its template video. Considering that the makeup, hairstyle, clothing, movements, lighting and camera switching of the characters in the template video were consistent with the videos in which the plaintiff appeared, it can be determined that the defendant used the template video in which the plaintiff appeared. The videos were replaced with other people’s faces through deep synthesis technology, and then uploaded to the APP involved as a template for users to use. However, this act did not infringe the plaintiff's right of portrait.
First of all, the face-changing template video is not identifiable in the portrait sense. Recognizability emphasizes that the essence of a portrait is to point to a specific person, and the portrait reproduced through technical means must be able to enable a certain range of the public to identify the person the portrait is. Although with the development of the times and technology, the scope of portrait right protection is not limited to the face, but it should still comply with the legal provisions of "reflecting the identifiable external image of a specific natural person" and be able to form a one-to-one correspondence with the specific natural person. In this case, the faces of the characters in the video involved in the case were not only removed, but also replaced. In essence, the identifiable core part of the video was replaced with the identifiable facial portrait of others, which dispelled or even destroyed the plaintiff’s identity in the video involved in the case. With the function of identifying the plaintiff, what the public can directly identify through the face-changing template video involved in the case is actually the person in the template rather than the plaintiff, and there is no one-to-one correspondence with the plaintiff.
Secondly, the defendant did not commit statutory infringement of the plaintiff’s right to portrait. According to the provisions of the Civil Code, infringement of portrait rights includes making, using, and publicizing the portrait of the portrait rights holder without the consent of the portrait rights holder, defaming, defacing, or using information technology to forge the portrait of others, etc. In this case, the defendant did not produce a video containing the plaintiff’s portrait; although the defendant used the plaintiff’s video involved in the case, it did not use the plaintiff’s portrait. Instead, it replaced the plaintiff’s face with a face that could identify the plaintiff and removed the identification of the portrait. Then, the impersonal elements in the video were used, that is, makeup, clothing, hairstyle, lighting, lens switching, etc. to obtain property interests; in addition, the defendant did not vilify or deface the plaintiff's portrait; at the same time, the defendant's behavior did not constitute forgery of the plaintiff. The act of portraiture.
Therefore, the defendant’s actions did not constitute infringement of the plaintiff’s portrait rights as stipulated by law, and did not infringe upon the plaintiff’s personal and property interests attached to his portrait.
The defendant’s behavior constituted an infringement of the plaintiff’s personal information rights.
First, the video in which the plaintiff appeared in the case contained personal information including the plaintiff’s face. The plaintiff's video appearance in the case dynamically presents the plaintiff's facial features and other individual characteristics. Based on digital technology, these personal characteristics can be presented in the form of data, which complies with the "Personal Information Protection Law of the People's Republic of China" stipulates that "it is related to an identified or identifiable natural person". "Relevant information" definition.
Second, the defendant processed the plaintiff’s personal information. First, the defendant should be the subject responsible for the processing of personal information. Even if the defendant actually uses the technical services of the company outside the case, the company outside the case is only an entrusted technical service provider. The defendant is the principal of personal information processing, determines the method and scope of information processing, and should bear responsibility for the personal information processing behavior. Secondly, the face-changing behavior involved in the case is a personal information processing behavior. The defendant first needs to collect a video of the plaintiff's appearance that contains the plaintiff's face information, replace the plaintiff's face in the video with the face in the photo provided by him. This process uses facial recognition technology that detects key points on the face, and then replaces the provided The facial features corresponding to the face image are fused to the specific person in the template image, and the generated picture has both the facial features in the specified image and the template image. This synthesis process is not just a simple replacement, but requires merging the features in the new static picture with some facial features, expressions, etc. of the original video through algorithms, so that the replaced template video behaves naturally and smoothly. The above process involves the collection, use, and analysis of the plaintiff's personal information. Therefore, the process of forming a face-changing template video through "face-changing" belongs to the processing of the plaintiff's personal information.
Third, the defendant’s behavior infringed upon the plaintiff’s personal information rights. Automated personal information processing often has characteristics such as concealment. Therefore, the law prevents risks such as leakage and abuse by giving individuals the right to know and decide on the processing of their personal information. Although the plaintiff's video involved in the case has been made public, the description of the account involved in the case is marked as "not authorized to any paid software." It should not be inferred that the plaintiff consented to others processing his facial information. In addition, the defendant obtained the video containing the plaintiff's face information, analyzed and modified it using the emerging technology of deep synthesis, and then commercialized it. This may have a significant impact on the plaintiff's personal rights and interests, and the plaintiff's consent must be obtained in accordance with the law. The defendant had no evidence to prove that it had the plaintiff's consent, so it constituted an infringement of the plaintiff's personal information rights.
The verdict of this case has important reference significance for the application of AI face-changing technology and the protection of personal information. It also reminds relevant companies to strictly abide by laws and regulations and respect personal rights and interests when using AI technology.