Forensics in Civil Litigation: Biometrics and the Right of Publicity
David L. Hecht
June 16, 2020
Protecting one’s “likeness” has never been more important than now, with the rise of and easy access to deepfake technology which enables anyone with a computer to create videos of people saying or doing things that they did not actually say or do.
In the United States, the right of publicity is a personal property right, defined and governed by state law, that provides a person with the right to prevent others from using his or her likeness. Likeness may include a person’s image or voice, among other things. If a person’s likeness is replicated without permission in a movie or a video game, that person may choose to file a lawsuit claiming a violation of the right of publicity.
While it is not uncommon for civil litigations to involve claims relating to forgery of a signature, newer right of publicity lawsuits increasingly revolve around disputes over other biometrics signatures, such as one’s voice or face.
Voice Comparisons
“Audio and video forensic experts are just starting to be engaged in right of publicity cases,” Mr. Hecht said. “For audio investigations involving speech comparison, for example, experts can authenticate digital or analogue audio, enhance audio, or even recover audio—and perform voice biometric testing, also known as voice identification testing.”
Voice identification testing is the scientific observation of and comparative analysis between known and unknown recordings. During voice biometric testing, a forensic examiner must create exemplar recordings (i.e. recordings of a person that is known) which are then compared to unknown recordings (i.e. recordings which may not have been of the same person). An exemplar recording must be made using equipment that is the same, or as similar as possible, to the equipment used to create the unknown recordings to control for (or to at least minimize) any impact that differences in instrumentation might have on the recorded voice data.
The forensic examiner conducting the voice biometric testing must focus on certain characteristics of the recording, including word pronunciation, dialogue continuity, and vocal tonality, in a controlled environment using professional near-field monitors and headphones.
Mr. Hecht described: “In a recent case, the client’s voice was so well imitated by a voice actor that the various samples were indistinguishable not only to a layperson’s ear but also to our voice expert. That imitation was part of what was believed to be an effort to mimic the client’s likeness in a popular video game.”
Professional software used by forensic examiners offers a matching percentage and two confidence indicators (false rejection (FR) and false acceptance (FA)), as results to help the examiner formulate an opinion. In general, if a test result has more than a 90% probable match, the two samples are very similar and likely to come from the same individual. In Mr. Hecht’s litigation, each test presented a probable match, as well as a high probability that the samples came from the same person. “The second sample was from the defendant and was never recorded by the client; the high level of confidence from the forensic testing was useful to demonstrate that the voice actor’s impression was so similar that the software basically concluded it was from the same person (even if it was not),” Mr. Hecht added.
Facial Recognition and Face Comparison
With the rise of Apple’s FaceID and Microsoft’s Windows Hello, consumers understand that one’s face can also operate as a biometric identifier. Facial comparison can also be used in civil litigation involving right of publicity claims, according to Mr. Hecht.
Mr. Hecht described: “In addition to voice comparison, I also have experience with facial comparisons in these kinds of cases. There are measurable characteristics of the face, including the eyes, lips, eyebrows, head structure, texture of various areas of the face, and so on.”
The same techniques employed by law enforcement investigators for many years may also be used in civil litigations, including cases involving the right of publicity. Forensic examiners who testify as experts in civil cases may look to the Facial Identification Scientific Working Group (“FISWG”) formed by the FBI Biometric Center of Excellence.
The FISWG’s mission is “to develop consensus standards, guidelines, and best practices for the discipline of image-based comparisons of human features, primarily face…” FISWG outlines the following one-to-one facial image comparison methodologies:
Holistic comparison – the process of comparing faces by looking at the face as a whole and not component parts;
Morphological analysis – applying the classification and description of the form and structure of facial features;
Photo-anthropometric – the measurement of dimensions and angles of the anthropologic landmarks in order to quantify characters and proportions of a person in an image; and
Superimposition – the process of creating a scaled overlay of one image and aligning it with a second image.
The biometrics identification community also relies on software to help automate image comparisons and to consider more data points.
The first step of facial comparisons may include extracting or producing geometric landmarks which define the key features of a person’s face, as defined in the Biometric Data Exchange Standard: ANSI/NIST-ITL 1-2007. This step reduces the large number of data pixels in the original digital image to a much smaller set of numbers representing the key facial features.
Next, the expert implements techniques to compare an image of a person’s face to a second image, for example, an image of a computer-generated image (“CGI”) character that may have been intended to duplicate the person’s face. In commercial products used in the trade, score thresholds are set which may define whether or not the person is the same, or a convincing duplicate.
With the rise of CGI, Mr. Hecht anticipates that biometric experts will play an increasingly important role in civil litigations that implicate various forms of intellectual property, including the right of publicity. “Lawyers need to think outside the box to demonstrate to the trier of fact that an injustice has occurred and that a client’s likeness was duplicated, for example. While there may not always be a smoking gun produced in discovery, I am a strong proponent of relying on expert opinions grounded in hard science, including forensic science, to make a point.”