Selling artwork or other creative material under a fake persona

Question

It is possible, using artificial intelligence, to generate convincing images of people who don't really exist. For some examples, see https://www.thispersondoesnotexist.com.

If a person were to create a fake online persona using images generated in this way and use that persona to sell artwork or other creative material, could there possibly be any legal repercussions?

For a more specific example - a person creates a persona of a young, attractive female with the belief that some men will be more likely to buy their artwork if they believe that the creator is a young, attractive female. In this scenario let's imagine that there is a hypothetical claimant who is prepared to testify that they only bought the artwork because they believed it had been painted by an attractive young female and that they would not have purchased it had they known otherwise.

Could a criminal or civil case be raised against the person who did this?

Answer 1

It is difficult to see where the legal 'wrong' is here. Ethically, morally, etc - is a different story.

You could bring a civil suit for this; possibly for rescission purposes but it would be unlikely to succeed. (You can bring civil suits or litigation for a LOT of things; whether they succeed or not is another matter entirely).

"For a more specific example - a person creates a persona of a young, attractive female with the belief that some men will be more likely to buy their artwork if they believe that the creator is a young, attractive female. In this scenario let's imagine that there is a hypothetical claimant who is prepared to testify that they only bought the artwork because they believed it had been painted by an attractive young female and that they would not have purchased it had they known otherwise."

There is a difference between saying, "This 'young attractive female' made this art, would you like to buy it?" or "Hello - this is my picture and my name is #######, I am the artist and this is my art"- this may come under misrepresentation if this is not true - also see here. But based on your query - there is simply a picture of an 'attractive woman' used, obliquely, to advertise art; without stating that person is the artist.

The general rule is that silence will not amount to a misrepresentation. There is no duty to disclose facts which would affect the other party’s decision to enter into the contract.

If the two things - the artwork being sold and the person depicted in the profile pictures are distinct and separate, and there was nothing written or said about their relation to each other (artist etc) it is difficult to close the connection between the two. 'Beautiful' people have been used for a very long time to lend 'appeal' to products - it's done every single day in the media; so there is a long history of this being accepted practice. There also doesn't seem to be any fraudulent description of the product etc.

In this scenario let's imagine that there is a hypothetical claimant who is prepared to testify that they only bought the artwork because they believed it had been painted by an attractive young female and that they would not have purchased it had they known otherwise."

If one goes on to Freelancer websites such as 'Fiverr' there are many, many sellers on their with profile pictures that I would estimate NOT to be the real person - the issue could be applied to all these sellers - "I would not have bought this SEO boosting service had I known that profile picture was fake." This issue could be applied to so many areas of life, such as a dental practice using a templated website (like here) a claimant might say, "I saw a picture of an attractive female dentist on the dental practice's website and assumed they would be examining me. Therefore, I went to my consultation and pre-paid, only to be examined by an 'unattractive' man. I would not have pre-paid for my consultation had I known this to be the case". So, whilst this may have been the claimant's assumption - one can assume a many great things, unrealistically, and this is not necessary reasonable.

It could also be said of the picture that one mistook for the artist; if this was such an important issue and indeed what you are arguing to be the main contributing factor of your purchase, why you didn't exercise any reasonable due diligence in ensuring this was the case?

EDIT after further OP comments to another answer:

You have mentioned in a comment:

To be clear, the scenario here involves the seller deliberately misrepresenting themselves as an attractive female in order to convince buyers that the artwork was created by an attractive female as they know that the buyer will only be interested if it was created by an attractive female.

You would need to explain this further as to how they were deliberately misrepresenting themselves. You are also using suppositions and legally contentious things such as:

"in order to convince buyers that the artwork was created by an attractive female as they know that the buyer will only be interested if it was created by an attractive female"

Any reasonable person or lawyer would simply ask, "How do you know any of this? What is your evidence? Prove this was their motive." If you can - then again, different story!

As another user has pointed out - they could be using a Pseudonym - and discussions about the legality of using pseudonyms as an artist should possibly (?) be another separate question.

Answer 2

Could a criminal or civil case be raised against the person who did this?

No. Marketing is widely known to involve actors or presenters who are unrelated to the production of what is being advertised. You rightly point out the seller's motivation for using images of a young, attractive female, but that does not imply that the seller intentionally misrepresents that that young, attractive female created the artwork (let alone that the buyer reasonably relied on the misrepresentation).

Even if the fake online persona unequivocally misrepresented that she created the artwork, the buyer would be unable to prove that his reliance thereon was caused him a loss. To credibly allege that the matter prevented the buyer from helping other young, attractive females, he would have to prove some history or habit of helping them altruistically. The condition of altruism is necessary because usually a person buys artwork because either he likes the artwork itself or for purposes of acquiring art from a renown artist (which would not be the case if the purported author is a "randomly" created character).