While scrolling through short-form videos you have probably seen the ad: upload one photo and replace the heroine of a costume drama with your own face, “warping” back to the Han or Tang dynasty in one click. It sounds cool, but few users realize that the “face-swap” may hide an infringement of the original author’s rights.
In 2024 the Jiading District Court of Shanghai concluded “Photographer Chen v. Shanghai Yi×× Network Technology AI Face-Swap,” the first Chinese judgment to hold that AI face-swap is neither fair use nor an original adaptation, drawing a bright red line for the booming AIGC (AI-generated content) industry.
-
Case at a Glance: A 10-Second Costume Clip Gets Swapped
Photographer Chen posted 13 short videos of a woman in ancient dress on his Douyin account “Photographer ××.” Each clip lasts only about ten seconds, but Chen invested heavy creativity in framing, camera movement, costume matching and choreography.
The defendant company launched the mini-program “Mou Yan.” With an AI video-synthesis algorithm it replaced the face in Chen’s clips with the user’s selfie, leaving scenery, shots, styling and movements almost intact. Users either watch a 30-second ad or pay a membership fee to download the “self-starring” costume clip.
After gathering evidence Chen sued, demanding the infringement stop and RMB 50,000 in damages. The court found that apart from facial features the accused videos were “substantially similar” to the originals, ordered the defendant to pay RMB 7,500 plus reasonable costs and stop the infringement.
-
Key Holdings: Three Defenses All Fail
(1) Original adaptation?
The court held that AI merely performs a local facial replacement; it does not create new “originality” in audiovisual expression and therefore is not an adapted work under copyright law.
(2) Fair use?
The defendant used the original videos as a traffic magnet, kept plot and pictures intact, pursued a clear commercial purpose and substantially substituted for the original, so it did not qualify as “appropriate quotation,” teaching, scientific research or any other fair-use scenario.
(3) Technology is neutral?
The platform actively supplied the source clips, the algorithm and a paid interface; it participated in and profited from the whole process—upload, synthesis, download—so “tool neutrality” is no shield.
-
Industry Pain Point: Algorithms “Cut Corners,” Creators Get Hurt
AI face-swap, AI dubbing, AI watermark-removal… the technical threshold keeps falling while the grey supply chain matures. Some platforms feed others’ hit material straight into their models; users supply a photo and “instant blockbusters” pop out. Consequences:
-
Original creators lose traffic and the licensing market is devalued.
-
Advertisers look only at numbers, so pirated clips win commercial orders.
-
Consumers assume costume shorts are all free for commercial use, fuelling more “re-upload” culture.
-
Why the Judgment Matters: Putting a Tightening Spell on AIGC
-
Algorithms are not a “get-out-of-jail-free card”: whoever supplies the clips, tunes the model and collects the fee must exercise review duties.
-
“Local replacement spawns no new right”: changing only a face, voice or other local element without altering overall expression does not create a new work or independent copyright.
-
“License first, synthesize later” business models are encouraged: the court issued a judicial suggestion urging the defendant to file its algorithm, build a whitelist of copyrighted material and offer a compliance template the sector can copy.
-
Compliance Checklists for Platforms, Users and Creators
Platforms
-
Build a copyrighted-asset database; ban unlicensed source clips.
-
For high-risk functions (face-swap, watermark-removal, voice-clone) require real-name registration and embed traceable watermarks.
-
Prominently warn “Upload only licensed works” and provide a one-click complaint channel.
Users
-
Uploading a photo equals consent for facial use, but the platform must still license the underlying video.
-
Before downloading a composite, check whether the source is marked “commercial use allowed.”
-
Before commercial release (ads, live streams, e-commerce clips) always ask for the full copyright chain.
Creators
-
Register 10- to 30-second clips promptly; low cost, high enforcement efficiency.
-
Insert invisible watermarks or animated logos at start and end to ease infringement comparison.
-
On detecting face-swap piracy, file a notice-and-takedown request or sue directly for damages.
-
Conclusion: Technology Can Swap Faces, the Law Must Not Swap Principles
AI lowers the creative bar and makes infringement stealthier, but copyright rules do not vanish. The Shanghai court’s judgment sends a clear signal: however smart the algorithm, it cannot override the lawful rights of original authors; however hot the commercial innovation, it must return to the track of “license first, use later.”
Only when technology resumes its role as a tool and creativity returns to human-centred values can AIGC become true incremental growth for the cultural industries instead of “stolen growth.”
Next time you see a “one-click face-swap” ad, ask: Did the platform license the original clip? After all, respecting copyright is what keeps your own face in the sunlight for good.
