With the rapid development of artificial intelligence (AI) and deep synthesis algorithms, applications such as “face swap” and “makeup swap” have become widespread and popular. At the same time, the risks of infringing the personal rights and interests of natural persons in the application of such AI technologies have also attracted increasing attention.
On June 20, 2024, the Beijing Internet Court handed down two first-instance rulings on copyright infringement cases involving “AI face-swapping” apps in Beijing. The court found that a service provider that used other people’s videos to perform “face swapping” and create templates infringed on other people’s personal information rights and interests, even though it had commissioned a third-party company to provide the “face swapping” service for commercial purposes.
The plaintiff in this lawsuit was a model for a short video, and the defendant, an AI face-swapping app operator, used the plaintiff’s image without permission to create face-swapping templates that can be used for a fee. The plaintiff sought an apology and compensation from the defendant, claiming that her portrait rights and personal information rights and interests had been violated.
The case focuses on 1) whether the image templates used for AI face swapping qualify as identifiable portraits, and 2) whether the defendant’s integration of third-party AI face swapping technology into its app means that the plaintiff’s facial information is not processed by the defendant, meaning that the defendant has not violated the plaintiff’s personal information rights and interests.
The court ruled that although the templates created by the AI reproduced the plaintiffs’ movements and appearances, they were not recognizable as specific individuals because their facial features were different, and therefore did not constitute a violation of their portrait rights.
However, the plaintiffs’ video footage contains personal information, such as facial features, which People’s Republic of China Personal Information Protection LawThe defendant’s unauthorized collection of this video footage, its use to create face-swap templates, and its technical replacement of the plaintiff’s face constitutes processing of personal information. Although the defendant commissioned a third party to provide the AI face-swap technology, it was the defendant who determined the method and scope of the information processing, and therefore the defendant should be held liable.
Although the Plaintiff’s video footage was publicly available, it was clearly marked as unlicensed paid software. The Defendant’s unauthorized commercial use violated the Plaintiff’s rights and interests. The applicable law aims to protect personal information through the right to know and the right to decide to prevent the leakage or misuse of personal information. The Defendant failed to prove that it had obtained the Plaintiff’s consent, and thus violated the Plaintiff’s rights and interests regarding the personal information.
This case provides two important lessons for app operators in the AI field: 1) Outsourcing the processing of personal information to a third party does not exempt the operator from responsibility. 2) Even if an AI face-swap service provider erases the facial features of the original rights holder when creating an image template, the provider must obtain the consent of the original rights holder to avoid infringing on the rights of personal information.
If you require further information please contact the TMC/IP team.
