Here’s a draft of a problem that I’ll be including in the Obscenity chapter of my First Amendment textbook.
Within about ten years, there will probably be software that can merge people’s photographs and voices with movies that depict someone else. This is of course often already done manually with photographs; but a sophisticated computer program can do it automatically and seamlessly, for a whole movie. And it can deal with multiple scenes where the person is shown from different angles doing different things.
The person running the program would give it a file containing a movie, and a few files containing a person’s photographs and possibly voice recordings. He would also tell the program which character is to be altered to fit these photos and voice recordings. The program would replace all the character’s appearances with the new person, and would try to adjust the character’s spoken words to match the new person’s voice. (This isn’t an easy task; even finding all the images of a particular character in a movie is nontrivial, but imagine that the program contains the image recognition software needed to do that.)
Where necessary, the program would make guesses, for instance about how the photographed person’s facial features or hair would move, or about what the unphotographed parts of the person’s body look like. It would also let the user provide input about these unknown items, and may let the user alter the person’s appearance in other ways.
This can be a great technology for various video applications. For instance, if a filmmaker uses a stuntman for a certain scene, he’d be able to easily replace the stuntman’s image with the star’s in the finished product. Parodists and artists will also be able to merge politicians’ or celebrities’ faces and voices into existing footage.
But, practically, the most common use of this would probably be for pornography. Consumers would buy the program; get ordinary, nonpornographic photographs of celebrities or of acquaintances; merge the photograph with a pornographic movie; and then be able to watch pornography that “stars” whomever it is they lust after. Some such merged movies might be sold to others, but many will be just made at home, to fit the user’s own personal preferences.
Naturally, many people, famous or not, will be quite 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 existing First Amendment law), and, if so, on what grounds?
I’m not looking for The First Amendment Answer here — the purpose of the problem is to get students to come up with arguments, not to provide the right answer. But I thought some readers might find the problem interesting, especially because I’m certain that such software will indeed be around soon (ten years is just a guess, but it’s certainly not too far off, especially since there’d be a huge market for it).
It’ll be virtually impossible to do anything about it as a practical matter, I suspect. Nor am I taking a stand on whether the government ought to try to do anything about it. Still, if I were the sort of person whom either acquaintances or strangers would like to merge into a porn movie — even one they’d only watch by themselves — I wouldn’t be at all pleased by this technology. Even if they watch the movie in the privacy of their own homes, there’d still be something mighty icky about them watching pictures that show me having sex. Again, I’m not sure whether it’s worth trying to regulate this, or whether it’s in any event practically possible to do so. But it’s a troubling scenario, it seems to me.
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