Sunday Morning Hot Tea - No. 23
People have been sending me frog nudes and what's the deal with Deepfakes?
Welcome to Sunday Morning Hot Tea where I write about a little something up top then answer a legal question for you down below. This week, learning about comedy through amphibious derrieres! Also, no, Tom Cruise didn’t really say and do all that stuff you saw on TikTok.
In this edition:
Topic of the Week – Everything I Learned in Comedy I Learned from a Bootleg Cassette Tape
Legal Question – What to Do If Someone Steals Your Face
You Might Be
People have been sending me frog pictures recently. Well, not just me. They send them to the show, post them on our Facebook group, and tag us in posts containing frogs on Instagram. We’ve seen cartoon frogs, real frogs, and frogs with macromutations resulting in eyeballs in their mouths. Most recently, we got a picture of a nude frog, though aren’t they all? This one was standing on its hind legs, its little froggy bottom on full display.
These photos started pouring in after we did an episode on The Loveland Frog Man. After the episode aired, two things happened. First, we were informed that we incorrectly pronounced the town’s name, saying “LOVE-land” throughout the episode. Native Lovelanders apparently say “luv-l’nd.” I issued an official statement on the next episode explaining that I say LOVE-Land because (1) I’m from Texas and that’s just how I talk, and (2) saying “luv-l’nd” before “Frog Man” misses the opportunity for a really great rhyme, and that is marketing 101.
Second, we started getting these frog pics, including the one of the little nudie frog booty. Confused comments on the tushy photo indicated to me that most folks were unaware that frogs had butts. I’m sure, of course, they knew that frogs had something back there. After all, every living creature has a built-in exit route. But people seemed amused and surprised at his little cheeks all popped out at the top of his skinny legs beneath his bulbous figure.
I, on the other hand, was not surprised at all. I learned about frog butts as a child. It happened when I stumbled onto a bootleg audio cassette that belonged to my Mam-maw, my grandmother on my mom’s side. My dad’s mom, Granny, sent religious literature and admonished us for never going to church. Mam-maw slipped me swigs of her piña coladas and gave me fun stuff like this stand-up comedy cassette.
I have no clue where she got the tape. The handwriting on the label was decidedly mannish and didn’t match the curly cues of her cursive style. A widow of nearly 20 years at the time and never having dated or remarried after my grandfather’s death, it likely came from a handyman or neighbor or person she met at the grocery store.
Mam-maw never met a stranger. She made every person she met feel heard and loved immediately. This created a swath of people who considered her to be their grandma, too, even though biologically she was nothing of the sort. My selfish little heart thought love was a limited quantity item, and so I believed if she had these hangers-on, she would necessarily have to love me less. This meant I had to hate them. Mam-maw taught me the opposite was true. She had an ever-expanding heart, and no new arrivals were going to bump me out. Her capacity to love went hand-in-hand with her generosity. She was generous with everything – her affection, her attention, her ear, her limited funds, and just about any item in her house.
“It’s only stuff,” she once said to quell my protests as she was forking over her wedding band to a ne’er-do-well cousin who once came knocking.
Given her generosity, it is no surprise I ended up with her bootleg comedy tape. I confess, I can’t remember much about how I got it. Maybe I asked for it, thinking it was a music cassette like my beloved Simpsons Sing the Blues album. What I do remember is taking it home and putting it in the enormous silver stereo that sat on a wooden entertainment center in our living room. I put my head next to the speaker and pressed play.
The tape began with an announcer’s voice.
“Ladies and gentlemen, Mr. Jeff Foxworthy.”
A crowd screamed and a twanged voice thanked them very much. The tape was Jeff Foxworthy’s 1993 album You Might Be A Redneck If… recorded live at the Majestic Theater in Dallas. Foxworthy, then in his 30s, waxed poetic about how good it was to be in Texas and how crazy Southerners talked. He hails from Georgia, but his opening bit about words like yunto, as in “We goin’ tomorrow. Yunto?” and jeetyet as in, “You hungry? Jeetyet?” absolutely killed with the Dallas crowd. It was jokes about my people told in front of a crowd of my people.
He then launched into his signature “You might be a redneck” bit before he covered the difference in single life and married life, and the roles of men and women in relationships and society. You know, all the things a girl in grade school really related to.
I wasn’t a total comedy beginner. I was raised on The Dick Van Dyke Show and Seinfeld. I understood that comedy writing was a job, a real career people really did. I understood that stand-up comedy existed. I just thought it existed only in the state of New York and only in 2-to-5-minute increments before a sitcom began. Listening to Jeff Foxworthy’s voice for the duration of a full cassette tape – both sides! – recorded in my hometown, talking like my family and my neighbors, describing what our life was like, gave me hope.
It wasn’t all about my family. He also talked about fishing and belt buckles and boots, things that were a little more country than we were. In so doing, he let me feel a comfortable distance from the butts of his jokes. Still, he wasn’t necessarily mocking any of his subjects. His bits were an exaggerated celebration, and based on the audience’s cheers, a relatable and enjoyable celebration at that.
It wasn’t unusual for me to sit and listen to a voice coming through the stereo speaker. Throughout my childhood, we spent every school day morning listening to Kidd Kraddick in the Morning, a local drive-time DJ who eventually became nationally syndicated. From Kidd, Kellie, and Big Al, I learned you can be funny with your friends behind a microphone as your job. That part I understood.
The only thing missing from the radio show was an audience. My family and I may have been laughing while eating Eggos in the comfort of our living room or in our mini-van in the drop-off line at school, but the DJs never heard us. Listening to the Foxworthy tape, my tiny ear pressed against the black fabric of the speakers, I heard the immediate whoops and hollers resulting from Foxworthy’s jokes. I heard the subtle laughs that bubbled up after a particularly clever line. I heard crowdwork.
I had no idea what it looked like inside the Majestic Theater the night he performed this set. Like the radio shows, it was just a voice emanating from a void, except with an audience behind him. I think I just imagined him performing in a black void of nothingness, unable to conceptualize what a full-blown theatrical stand-up show should look like. I kept that mental picture of him in the void inside my head for years, until I finally caught one of his specials on TV.
Soon, I sought out other stand-up shows. That’s when I first watched Lewis Black and Dave Chappelle and Adam Ferrara. It’s why I later bought and memorized Shut Up, You Fucking Baby, David Cross’s 2001 album, and why I, along with almost everyone else I knew from high school, bought Dane Cook’s 2005 album Retaliation.
I studied the differences in their voices. The rhythm of their jokes. I learned timing and setups, though I didn’t know I was learning. I was enamored with the act of standing up with a microphone and making audiences laugh, but none of them made me feel like I could do something similar as much as Jeff Foxworthy did.
To this day, my family – namely my mom – quotes several of his jokes, including the one about frog butts. The same joke that popped into my head when I saw those little green cheeks and made me turn his comedy on. The bit actually appears on 1998’s Totally Committed, a spin-off of sorts from Foxworthy’s previous redneck-heavy material. The redneck talk is still there. It’s just phrased in a different way.
Listening back now, the material in both specials holds up. More esoteric minds than mine may consider it a bit hack, but I’d challenge them to come up with a more memorable metaphor for what childbirth looks like than “a wet Saint Bernard trying to come in through the cat door.”
I’ll concede the path of marriage jokes and “men versus women” is well trodden. It’s also still true, and relatable as hell. Though they seem like we’ve always known the phrase, when he first debuted “You might be a redneck, it was revolutionary. He built an entire career, an empire even, on these observations. They resonated so much because they were largely true. Believe me, I know. I’ve lived some of them. He also provided the shoulders on which my current favorite comic, Nate Bargatze, stands. A much more evolved form of the schtick for sure, Bargatze makes me actually cry-laugh with his specials no matter how many times I’ve watched them. But he is undoubtedly inspired by Foxworthy. I’m sure others are, too.
Whatever anyone feels about Jeff Foxworthy, I can say this much: he made me laugh back then and managed to do it again today when I revisit his material. Today’s laugh came out a little different. It wasn’t based in the wonderment I held for him back when I was a kid. It was the type of laugh rooted in nostalgic recognition. Like jokes you heard from your schoolteacher. So clever and exciting at first, then by the tenth or twentieth time they’re delivered, you see them coming and slide into them like slippers.
Listening back now, I almost have the Redneck album memorized. I can finish the lines, not because the jokes are predictable, but because I was so changed by them. Could a setup like “If you’ve ever had to haul a can of paint to the top of a water tower to defend your sister’s honor…” ever be so easily forgotten?
For me, these jokes were transformative. I will always hold a spot in my comedy heart for them. Jeff Foxworthy was one of my earliest teachers, delivering lectures through those wood paneled speakers in my parents’ living room from each side of that tape. Lifelong lessons that made me who I am - like how to speak in your own voice, how to pull comedy stories from your own life, and just exactly what a frog’s butt looks like.
QUESTIONS FROM YOU – FACE/OFF
This week’s question is from Julissa on Instagram. Julissa asks:
So I’m seeing with all the apps you can use to swap your face with a celebrity’s face there are now TikToks of people just using the app and doing funny videos while pretending to be a celebrity like @deeptomcruise for example. My question is what kind legal protections exist to protect your likeness and how it can and can’t be used? Thank you!!!
Thanks for asking, Julissa!
As a lawyer fighting scams, I think Deep Fakes are the next biggest threat to scam victims, especially seniors. One way I tell seniors to try and avoid romance scams or celebrity scams is to ask to video chat with the person reaching out to them. Now, if scammers can put a celebrity’s face onto their own and pretend to be someone they’re not, how can we keep ourselves safe?
As a person who has seen Face/Off, I am equally as concerned about facial transplant surgery. But this question is about deepfakes, so let’s go with that.
What are Deep Fakes?
In case you are not familiar, the term “deepfake” can refer to manipulated media, either photo, video, or audio, that creates a false piece of new media. Scientists (or scammers) can use a special type of computing system to analyze photos, videos, or audio of a person to determine how to recreate them in the new media. For instance, when creating a deepfake video, the program may track what mouth shapes are linked to various sounds in order to mimic them.
These algorithms work best where there is tons of footage of a person – Tom Cruise, Tom Hanks, Tom Holland. Also other famous people not named Tom like Barack Obama, George W. Bush, and Hilary Clinton.
It’s funny to watch a person who appears to be Tom Cruise fall down in an upscale store. Believe me, I’ve laughed at it. But it is scary how much cheaper and easier it is becoming to create more and more credible deepfakes. There are even apps now that allow you to perform a deepfake live during a video chat, making my advice to always ask for a video chat pretty useless.
Just compare the 2018 Barack Obama deepfake linked above with the 2020-2021 Tom Cruise deepfakes from TikTok. The Obama video is fun to watch, especially knowing it’s Jordan Peele behind the fake, but you can tell there’s something just beneath the surface that’s not quite real. On the other hand, the Tom Cruise videos are so spot on that the creator made a breakdown video just to show how it was done and calm people’s fears.
There is also this incredibly realistic and funny, but wildly inappropriate, video created by the South Park guys featuring our most recent former president and a handful of other celebs including Julie Andrews and Michael Caine. The voices are clearly silly exaggerations, but to my untrained eye, the videos seem flawless.
What kind legal protections exist to protect your likeness and how it can and can’t be used?
The good news is we don’t need to rush to make a bunch of new laws to keep up with this new technology. Good old fashioned common law can serve to protect you from being victimized by deepfakes in most cases. There are a couple of torts (tort = a reason for suing someone) you could use to recover after being the victim of one of these videos.
One such tort is called “false light.” False light is recognized in some states, though not Texas. According to the Restatement (Second) of Torts, when you sue someone for false light, you have to prove:
The defendant/deepfaker published the information widely (i.e., not to just a single person, as in defamation);
the publication identifies the plaintiff/you;
it places the plaintiff/you in a "false light" that would be highly offensive to a reasonable person; and
the defendant/deepfaker was at fault in publishing the information.
False light claims can be similar to defamation claims, which is actually why Texas doesn’t recognize false light as a cause of action. Texas courts have said that behaviors that other states would recognize as “false light” are covered under Texas defamation laws. Any expansion, the courts said, would have an impermissible chilling effect on free speech and run afoul of the First Amendment. So in Texas, someone may try to sue a deepfaker for defamation.
When bringing a claim for something like defamation, the law distinguishes a private figure from a public one. Private figures are ordinary, non-famous citizens. If a citizen who has no public persona sues for defamation, they would only need to claim that the bad actor was negligent regarding the truth or falsity of the defamatory statement at issue. On the other hand, public figures would have to prove that the bad actor knew the statement was false, or recklessly disregarded whether it was false.
This makes it particularly hard for politicians, who are generally considered to be public figures, to recover under defamation suits. However, if a deepfake is “fake” by its very nature, would it be so difficult to prove that the bad actor knew it was false? They created the falsity themselves.
New laws may also help politician-victims of deepfakes. In Texas, we now have our very own anti-deepfake law. In 2019, Texas became the first state to outlaw political deepfakes by statute, making it a crime to create videos “with intent to injure a candidate or influence the result of an election” that are “published and distributed within 30 days of an election.” California passed its own version of the bill in 2019 as well.
Some have warned that these laws are unconstitutional, but because the laws are new they have not yet been challenged.
It’s not just political videos to worry about. A 2018 study cited by the MIT Technology Review found that 90% and 95% of deepfake videos are not whimsical Tom Cruise gaffs or political videos but are, instead, nonconsensual pornography. Then, about 90% of those videos are nonconsensual porn featuring women, both famous and non-famous. Current revenge porn laws don’t cover deepfake pornography made without the subject’s consent.
Even so, other laws may be effective in stopping nonconsensual deepfake porn. Creators of these harmful videos could find themselves subject to criminal penalties like harassment, cyberbullying, or even extortion for making and distributing these videos without the subjects’ consent.
Can celebrities sue for deepfakes?
Not easily. Jay-Z found himself the subject of vocal deepfakes. The iconic rapper has such a unique way of rapping/speaking that a YouTube channel called Vocal Synthesis was able to upload videos of him supposedly rapping the “To be or not to be” soliloquy from Hamlet and the lyrics to Billy Joel’s “We Didn’t Start the Fire” (shout out Billy Joel!) Both videos were vocal deepfakes.
Hova’s legal team issued Digital Millennium Copyright Act (DMCA) take down notices to YouTube to remove the videos for violating copyright, but their requests failed. Why? You can’t copyright someone’s manner of speaking.
Both Jay-Z’s Shakespearean monologue and the Billy Joel bit would fall under Fair Use parody anyway, as would things like the Tom Cruise deepfakes showing a mad cap Cruise tripping and falling. Things change when someone tries to make money off the sound-alikes, though.
It doesn’t have to be a fake video posted online, either. In the late 1980s, McDonald’s introduced the Mac Tonight, moon-headed crooner who played piano and invited customers to enjoy late night meals. His singing style was a little too close to the then-deceased singer Bobby Darin whose estate sued McDonald’s for trademark infringement, causing McD’s to nix the commercials.
In a completely unrelated turn, Mac Tonight has since become an alt-right white supremacist meme because we apparently can’t have nice things. You’re welcome for that bizarre rabbit hole.
Along those lines, Texas and other states recognize the Right of Publicity – that is, the right of a person to make money off their name and likeness. It is actually considered a property right under statute. This law would protect someone from having a deepfake of them used for commercial purposes.
Under Texas common law, an individual could also make a similar claim for “misappropriation” which courts have broken down into three elements:
that the defendant/deepfaker appropriated the plaintiff's name or likeness for the value associated with it, and not in an incidental manner or for a newsworthy purpose;
that the plaintiff can be identified from the publication; and
that there was some advantage or benefit to the defendant.
So if (1) a deepfaker appropriated your name/likeness for the value – that is, to make money, (2) the fake media is identifiably you, and (3) the deepfaker is advantaged or benefitted by the deepfake, you could possibly prevail on a claim of misappropriation.
What can we do to stop deepfakes?
To sum it up, civil causes of action like defamation, false light, right of publicity, and misappropriation should work to protect most deepfake victims from having their faces used for inappropriate or commercial purposes. However, things like Fair Use/parody and high bars of recovery for defamation of public figures may make that difficult in some cases.
Criminal laws prohibiting harassment, cyberbullying, and extortion may also be used to help victims of deepfakes. However, the most common use for deepfakes – nonconsensual porn – isn’t explicitly covered by current revenge porn laws, not yet at least. States like Texas and California have passed deepfake laws to try and prevent meddling in elections by criminalizing deepfakes, but those laws may be on the constitutional chopping block by courts if ever challenged.
Of course, we don’t want to criminalize parody videos or restrict speech. Watching Tom Cruise slip and fall in a fancy store is hilarious. WE MUST PROTECT IT AT ALL COSTS!
But should there be some protection for the public from these tricky videos, photos, and audio? Probably, considering a company lost $243,000 when scammers used a deepfake voice to mimic a CEO’s voice and demand the hefty funds transfer. With the increasing accessibility of the technology and the unceasing motivation of scammers to steal money by any means possible, this is only the beginning.
Next time you watch a video, ask yourself, like Shakespeare would: “doth mine eyes deceive me?” Is that Shakespeare or was it the bard Shawn Carter? 🤔 Either way, we can’t trust photos/video/audio we see on the internet. We can ONLY trust what we see in person. If we see someone in person, we know it’s them and not an imposter, right? RIGHT!?!?
Oh no.
Thanks for the question, Julissa!
Got a question? Submit it here. They can be legal what-if questions, questions on current events, or questions about the legality of actions in TV shows or movies you’ve seen. I never ever want to answer your personal legal questions, so don't send those. Love you, but I don’t do that.
Until next week, that’s the tea, and if you see a dirty video with my face, it ain’t me.
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