Abstract
Given that deepfakes are almost always associated with expression of some kind, any attempt to litigate or regulate deepfakes will require the consideration of the First Amendment. Deepfakes implicate so many areas of law and society that a discussion of the interface of First Amendment free speech rights and deepfakes writ large would require a treatise volume with several chapters. This article is more modest: It will examine the past, present, and future use of the Rogers test in an evaluation of the application of First Amendment protections in trademark infringement cases and in legal actions traditionally associated with the exploitation of celebrities, sports figures, other persons under federal trademark theories of false endorsement, false designation of origin, and trademark dilution, and state law theories of right of publicity and right or privacy. In each of these areas of law, the Rogers fair use test has been used to evaluate the use or misuse of both trademarks and publicity and privacy rights in a claimant’s name, image, or likeness, distinguishing those with true expressive content from those whose exploitation or harm overwhelms the expression in the use.
Part II of this article will examine the Rogers v. Grimaldi case and the Rogers fair use test. Part III will discuss the Jack Daniel’s case and its clarification of Rogers, particularly with regard to parody defenses. Part IV will explore the past and predict the future of the Rogers fair use test in federal trademark infringement, false endorsement, false designation of origin, and trademark dilution claims, as well as claims asserting state law theories of right of publicity and right of privacy.
Document Type
Article
Publication Date
2024
Repository Citation
Murray, Michael D., "DEEPFAKES AND DOG TOYS: FIRST AMENDMENT DEFENSES UNDER THE ROGERS TEST AFTER JACK DANIEL’S V. VIP PRODUCTS" (2024). Law Faculty Scholarly Articles. 816.
https://uknowledge.uky.edu/law_facpub/816
Notes/Citation Information
Michael D. Murray, Deepfakes and Dog Toys: First Amendment Defenses Under the Rogers Test After Jack Daniel's v. VIP Products, 58 Ind. L. Rev. 257 (2024).