Tom Hanks May Be the First Big (American) Deepfake Plaintiff

Nothing in this post is legal advice. All cases’ fact patterns are different, and competent attorneys will use their own trial strategy as it applies to their fact pattern.

by Michael

If you head to our homepage at the time of writing and click the “Case Law” button, you’ll notice that nothing happens. I have a good reason for this: we don’t have any published opinions (that I’ve found) on cases centering on deepfakes in the United States. There’s been a few cases internationally in places like India that don’t share a common law history with the United States, but we’ve lacked precedent in the U.S. of A.

That is, until “Tom Hanks” endorsed dental insurance. The deepfake itself isn’t particularly convincing in context, as we know that Tom Hanks is most definitely not in his mid-thirties. That hasn’t prevented him from bringing attention to it and warning his fanbase about the dangers of deepfakes in a recent Instagram post. Even a 1L law student could spot this as being an easy appropriation case. To my knowledge this is the first major and wealthy American figure with a clear-cut case against a deepfake creator.

Note: I’d imagine there’s been a handful of American cases that were settled out of court, but those obviously don’t create legal precedent. We’re hoping for legal precedent here.

Captain Phillips’ Maiden Voyage

If I had to pick a case to kickstart the history of deepfake litigation, this case would be the ideal precedent. Tom Hanks is:

• Wealthy, so he can afford a suite of solid lawyers
• Famous, so this case may introduce deepfakes into public awareness
• Well-known, so the plaintiff’s argument for damages could hinge on damage to his reputation
• Popular, so it’s not likely that he’d lose the case if it goes to a jury

The case itself is an easy appropriation and/or false endorsement claim, as most civil deepfake suits likely will be. Appropriation as a tort is defined by Cornell as “when a defendant uses a plaintiff’s name, likeness, or image without their permission for commercial purposes.” The dots connect themselves here, as a dental insurance company (the hypothetical defendant) uses a plaintiff (Tom Hanks)’s likeness and image without their permission for commercial purposes (advertising their insurance). It’s a slam dunk of a case.

Unfortunately it may be such a slam dunk of a case that it never sees trial, in which case we’re back at square one in our hunt for precedent.