Deepfake Technology Is an Attack on Consent and Actors’ Rights to Control Sex Scenes (Guest Blog)
Deepfake technology, which turns unwitting people into involuntary porn stars, can be misused in mainstream films, TV shows and video games, SAG-AFTRA national executive director David White writes
David WhiteGuest Writer | February 21, 2019 @ 2:23 PM
Deepfake porn may seem novel, but it is only the latest example of creators depicting actors in sexualized scenes without their consent. These nonconsensual depictions are not a victimless crime. They cause real harm. Even if it is not really his or her body, an actor depicted as participating in a sex scene may find it difficult to get cast in more family-friendly productions. Moreover, he or she may endure considerable emotional trauma as a result of being exploited in this horrific way.
Imagine having to see yourself in a sex scene you never freely and knowingly agreed to — whether it is your actual body or the product of special effects. Worse, knowing that this “performance” will live forever on your IMDb page or on websites like Mr. Skin that exist for the sexual gratification of millions of viewers. To put it plainly, these technologies allow a filmmaker, an internet troll or an ex-lover to own a person’s body and remove any opportunity for meaningful consent. This is indefensible.
The fact is, actors’ rights in this area have long been trampled on. We are all sadly familiar with the situation in which an actor gives one performance only to discover later that the filmmaker has transformed it by using a body double and/or special effects to make it seem as if the actor was nude or performing sexual activity. What is new about deepfake porn is how realistic the depictions can look, how many such videos are floating around on the internet and how easily a creator can use a cheap laptop and free software to pull this off, without ever hiring the actor in the first place.
So what can be done? To respond to this new form of sexual abuse, California State Sen. Connie Leyva is working with SAG-AFTRA to introduce legislation that would empower individuals to sue anyone who creates or distributes digitally produced sexually explicit performances without their permission.
Some have suggested holding exploiters accountable under existing state laws. Under California’s current right of publicity law, for example, professional performers may be able to claim that a nonconsensual sexually explicit depiction is really an unauthorized digital performance.
But that’s because performing is the activity for which the individual is known. If you are not a professional actor or porn star, this approach is unlikely to protect you. Defamation law is of similarly limited utility. You might be able to win a defamation lawsuit if the depiction is presented as true and causes harm to your reputation. But if you are victimized by a deepfake porn video that does not pretend to be true, you are out of luck. Even the protection of a union contract goes only so far.
Although victimized union members may be able to pursue some remedies through labor arbitration, they are still going to need the ability to sue in open court in order to be compensated for what may be considerable economic, emotional, or reputational harm.
That’s why we need legislation like Sen. Leyva’s upcoming bill. It is particularly effective because it directly addresses nonconsensual depictions in a way that covers all types of survivors. Moreover, her legislation defines what is meant by meaningful consent, establishes special rules on how to obtain consent and gives a survivor options, such as whether to elect statutory damages and to file a lawsuit anonymously.
Some commentators insist that no law can fix this problem given the free speech protections of the First Amendment. This is simply not true. No one knows with certainty what the First Amendment does and does not protect until a judge makes a legal determination. While creators will certainly mount a free speech defense, American jurisprudence has long balanced the right to free speech with powerful competing interests, including privacy, truth, the right to live free from harassment and intellectual property rights such as copyrights, right of publicity and trademarks.
Society benefits from putting reasonable limitations on how freely creators and individuals can speak, including necessary prohibitions on the creation and distribution of nonconsensual deepfake porn. No one but the creators of this content themselves benefit from the suggestion that these videos are all protected speech and that nothing can be done to prohibit them. Something can be done and must be done. It is the moral responsibility of lawmakers, internet platforms and content creators to commit to real action before this “Hollywood actor” issue becomes everyone’s problem.
'After Porn Ends': What 9 Porn Stars Did After Their Careers Ended (Photos)
What do porn stars do when their lives in the adult film industry end? That's the question at the heart of documentary filmmaker Bryce Wagoner's 2012 film "After Porn Ends," its two sequels. The film looks at the tragedies and successes of people who left an industry that famously uses up young talent. Some have no regrets about their years in the industry. For others, a career in the adult industry has proven to be a conduit to certain despair.
Here are their stories, as told to TheWrap by Wagoner.
Johnnie Keyes
He wasn't the first black adult performer, but he was the first black porn star. Coming from poverty, he enlisted in the Army and became a champion boxer, then used the G.I. Bill to get a drama degree and star in musicals. After a chance casting in the iconic 1972 adult film "Behind the Green Door," he found himself on the shores of Cannes and a cultural icon. Eventually retiring to raise his family, Johnnie is now an accomplished jazz singer and runs a youth outreach basketball camp with his son in Seattle.
Lisa Ann
Starting as a stripper in Pennsylvania, Lisa used porn to further her dancing career and was a well-known performer for 15 years before the opportunity of a lifetime: appearing in a parody of Vice Presidential candidate Sarah Palin that catapulted her to porn superstardom. She parlayed her media appearances into hosting her own fantasy sports radio show on Sirius XM.
Ginger Lynn
Her "girl next door" look made her the face of XXX films in the 80s and early 90s. Starting in bikini contests and taking the advice of famed photographer Suze Randall, she played the adult business by her rules, commanded the largest salary in porn, and got out exactly when she wanted to. After studying acting at the Beverly Hills Playhouse, she earned roles in "Wing Commander," "American Pie: Band Camp," "The Devil's Rejects," and "31." She has become as much an icon in the Comic-Con world as she is in the adult industry.
Janine Lindemulder
A one-time softball star with college scholarship offers, Janine found her way into adult through a modeling ad. Her porn career led to a wildly success career as an exotic dancer. She retired to marry and have a daughter with Orange County Choppers star Jesse James -- but after a brutal custody battle, she went to prison for owing hundreds of thousands of dollars in unpaid taxes. After getting out, she moved to the Oregon Coast to get her life back on track.
Tabitha Stevens
One scene kicked off an entire 20-year career for the former Vegas dancer, who holds the record for most porn star appearances on "Howard Stern." She also became a regular on "Doctor 90210." She and her husband run a fine-art photography gallery in Utah.
Brittany Andrews
She knew that she wanted to do porn to further her own business interests, and made her own line of videos and distributed them herself. After getting some mainstream cred by posing in Playboy Magazine, she learned to be a DJ and now plays all over the world, booked by the DJ agency Skam Artists.
Darren James
James began his path to XXX films as a Navy veteran from the streets of Detroit. He tried to join the LAPD but was waitlisted due to budget cuts. Not knowing where his next job was coming from, he tried porn and became a prolific performer. But after taking a big contract in Brazil, he wound up infected with HIV. He is now a public speaker who advocates for those living with the disease.
Chasey Lain
Lain began as a dancer and became one of the highest-paid performers in XXX. But after struggling with the changing economics and structure of the adult business, she turned to working as an escort at the world-famous Bunny Ranch. She's now saving money to go back to school and start her life over.
Georgina Spelvin
She began as a Broadway dancer and actress. When the work dried up, she got a job on an adult film as a caterer -- and then starred in the director's next film, 1973's "The Devil in Miss Jones." which would go on to be one of the most successful XXX movies of all time and would come to be considered an adult classic. She eventually took an office job and retired with her pension (and love of her life) 20 years later in Hollywood.
"After Porn Ends 2" delves deeper into social stigma, race, misogyny, and the reality of decreasing opportunities for former adult film stars. And the third film, directed by Brittany Andrews, came out in 2018.
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Bryce Wagoner’s documentary ”After Porn Ends 2“ looks at the troubles and successes of people who have left the industry. (Yes, it’s safe to click through this at work)
What do porn stars do when their lives in the adult film industry end? That's the question at the heart of documentary filmmaker Bryce Wagoner's 2012 film "After Porn Ends," its two sequels. The film looks at the tragedies and successes of people who left an industry that famously uses up young talent. Some have no regrets about their years in the industry. For others, a career in the adult industry has proven to be a conduit to certain despair.
Here are their stories, as told to TheWrap by Wagoner.
David White is the national executive director and chief negotiator of Screen Actors Guild-American Federation of Television and Radio Artist (SAG-AFTRA). White serves as chief executive officer and strategist for the world%u2019s largest entertainment union with approximately 160,000 members worldwide who work in film, television, broadcast news, commercials, music, video games and emerging media. Prior to rejoining SAG-AFTRA in 2009, where he previously served as general counsel from 2002 to 2006, White was managing principal of L.A.-based Entertainment Strategies Group LLC, providing consulting services to the entertainment industry, and a labor and employment attorney at O%u2019Melveny & Myers LLP.