according toBeijing Internet Court News, June 20, 2012The Beijing Internet Court has sentenced two cases of "AI face-swapping" software, the first of its kind in Beijing, to a first-instance trial.infringement caseclassifier for clothes, luggage, decorations; piece of work; a matter, an eventIt was held that an internet service provider who used a video of another person's "face-changing" to create a template and then provided "face-changing" services had infringed on the personal information rights and interests of another person.
The plaintiffs in the two cases, Liao and Wu, are both national windShort Video(fashion) model (loanword)The defendant is the operator of a face-swapping app that has a large number of fans across the Internet. The defendant is the operator of a face-swapping app.
The Plaintiff claimed that, without her authorization, the Defendant used the Plaintiff's appearance video to create a face-changing template and uploaded it to the face-changing app in the case, and provided it to the users for a fee in order to make a profit.
The plaintiff argued that the defendant's behavior infringed on the plaintiff's portrait right. At the same time, the Defendant uploaded and used the video with the Plaintiff's portrait information without the Plaintiff's consent, which was an act of the Defendant illegally obtaining the Plaintiff's face information and tampering with it, removing the Plaintiff's face and replacing it with the face of a third party by means of AI technology, and then using the technologically-processed video as a paid template for the users of the App in question to use and make profits, thus infringing on the rights and interests of the Plaintiff's personal information.The plaintiff accordingly demanded that the defendant apologize and pay compensation for moral and economic damages.
The Defendant argued that the videos posted on the Defendant's platform had a legitimate source, and the facial features were not those of the Plaintiff, which did not infringe on the Plaintiff's right to likeness. In addition, the "face-swapping" technology in the App was actually provided by a third party, and the Defendant did not process the Plaintiff's facial information, and did not infringe on the Plaintiff's personal information rights and interests.
The court found that the defendant did not submit evidence to prove the source of the template video, combined with the template video character makeup, hairstyle, clothing, action, lighting and camera switching and the plaintiff's appearance in the video presents consistent characteristics, it can be concluded that the defendant used the plaintiff's appearance in the video, through the depth of the synthesis technology to replace the other person's face, and then uploaded to the App as a template for the use of the user. However.This conduct did not violate the plaintiff's right to a likeness..
The Court held thatDefendant's conduct constituted an infringement of Plaintiff's personal information rights and interests:
First, the Plaintiff's video appearance in the case contains personal information including the Plaintiff's face information. The video of the plaintiff's appearance in the case dynamically presented the plaintiff's facial features and other individualized characteristics, which, based on digital technology, could be presented in the form of data, in line with the definition of "information relating to an identified or identifiable natural person" provided in the Law of the People's Republic of China on the Protection of Personal Information.
Secondly, the defendant has carried out the act of processing the plaintiff's personal information. First, the defendant should be the subject of the responsibility for the processing of personal information. Even if the defendant actually used the technical services of the company outside the case, the company outside the case is only entrusted with the technical service provider, the defendant is the principal of personal information processing, decided the way, the scope of information processing, should bear responsibility for personal information processing behavior. Secondly, the case in question face changing behavior belongs to personal information processing behavior. The defendant first needs to collect the plaintiff's appearance video which contains the plaintiff's face information, replace the plaintiff's face in the video with the face in the photo provided by himself, the process adopts the face recognition technology which detects the key points of the face, and then fuses the face features corresponding to the face image provided to the specific person in the template image, and the generated picture has both the specified image and the face features in the template image. The synthesis process is not just a simple replacement, but requires the fusion of the features in the new still image with some of the facial features and expressions of the original video through an algorithm, so that the replacement template video performs naturally and smoothly. The above process involves the collection, use, and analysis of the plaintiff's personal information, and therefore the process of forming the face template video by "face-swapping" is a processing of the plaintiff's personal information.
Third, the Defendant's behavior infringed on the Plaintiff's personal information rights and interests. The handling of automated personal information is often characterized by secrecy, so the law protects against the risks of leakage and misuse by giving individuals the right to know and decide on the handling of their personal information. Although the Plaintiff's video appearance in the case was a publicly available video, the description of the account in the case was labeled "not authorized to any chargeable software", which should not presume that the Plaintiff agreed to the processing of her face information. In addition, the defendant obtains the video containing the plaintiff's face information, the use of deep synthesis of emerging technology, analysis, modification, commercial use, may have a significant impact on the plaintiff's personal rights and interests, the plaintiff's consent should be obtained in accordance with the law. The defendant had no evidence to prove that it had obtained the plaintiff's consent, thus constituting an infringement of the plaintiff's personal information rights and interests.
The Court ruled thatThe defendant apologized to the plaintiff and compensated him for moral and economic lossesThe case is currently on appeal. The case is currently on appeal and the first instance judgment has not yet entered into force.
Judge Sun Mingxi said that the two cases are new types of cases involving "AI face-swapping", and the special feature of the cases is that the defendant uploaded the plaintiff's video to the application software after "face-swapping", whether it constitutes an infringement of the plaintiff's rights, and what kind of infringement of rights it constitutes. Infringement of rights, these are new issues brought about by the development of new technology. In this case, the defendant essentially utilized the plaintiff's short video, which included the use of some of the plaintiff's face information for the fusion of the newly uploaded photos, as well as the use of the makeup, hairstyle, clothing and other overall styling of the video, as well as the lighting, lens switching and other factors to form a template video.In other words, the main factor in Defendant's profitability was the labor input in Plaintiff's video in questionIf the defendant uses the above elements without the consent of the relevant right holder, the defendant may claim the legal rights and interests on the basis of other claims such as labor input and competitive interests. If the Defendant uses the above elements without the consent of the relevant right holders and "free-rides" on the labor input of others, the relevant right holders can defend their legitimate rights and interests on the basis of other claims, such as the input of labor creation and competitive benefits. The plaintiff did not claim to be a relevant right holder of the above rights, so the court only dealt with the property damage part of the defendant's infringement of the plaintiff's personal information rights and interests in this case.