Inserting People into Porn Movies: The First Amendment Textbook Problem (2005)

A prediction comes true, for better or worse ....

I added this problem to the second edition of my First Amendment textbook back in 2005, and news accounts suggest that it's now quite timely:

Within ten or twenty years [of 2005], there will probably be consumer-usable software that can easily overlay people's photographs and voices onto movies that depict someone else. The program would automatically and seamlessly alter multiple scenes in which the character is shown from different angles, with different facial expressions, doing different things. (Of course, one can already do this in some measure with photos, but this hypothetical program would be much more sophisticated.)

The user running the program would give it (1) a file containing a movie, (2) files containing photographs of the person who is to be included in the movie, and, optionally, (3) recordings of the person's voice. The program would use image recognition algorithms to replace all of a given character's appearances with the new person, and would adjust the character's spoken words to simulate the new person's voice. The program would guess how the photographed person's features would likely move, or what the unphotographed parts of the person's body look like. It would also let the user provide input about such unknown items, and may let the user modify the person's appearance in other ways.

A filmmaker could thus easily replace a stuntman's image with the star's. Parodists and artists could merge politicians', celebrities', or actors' faces and voices into existing footage (as in Zelig or Forrest Gump). Parents could place their children and children's friends into kids' movies, which may make the movies more fun for the children. Similar technology could embed human actors into computer-generated movies.

But the most common use of the program would probably be pornography. Consumers would pay to download the program [EV adds today: maybe they won't even have to pay!]; separately buy a pornographic movie [EV adds: buying porn? who does that?]; get nonpornographic photographs and possibly voice recordings of celebrities or of acquaintances; run the program to merge the photographs and voices with the movie; and then watch pornography that "stars" whomever they lust after. Some such merged movies might be sold, but many will be made at home, to fit the user's own preferences.

Naturally, many people, famous or not, will be unhappy knowing that they are depicted without their permission in others' home sex movies. Imagine that Congress therefore decides to prohibit the distribution and use of the computer program that allows such movies to be made.

How would such a law be different for First Amendment purposes from normal obscenity legislation? Do you think the law should be upheld (even if that means changing First Amendment law), and on what grounds?

If you think the law should be struck down, what about laws that

(1) prohibit the use of the software to make such pornographic movies without the photographed person's consent,

(2) prohibit the noncommercial distribution of the movies, whether to a small group of friends or on the Internet, or

(3) prohibit the commercial distribution of the movies?

Don't limit yourself to considering whether such laws are constitutional under existing obscenity doctrine. Consider also whether you think there should be an obscenity exception at all, and whether you think it should be broader or narrower than it now is.