Denmark is taking steps towards regulating deepfakes with a new act that includes both deepfakes of artists' performances and the characteristics of natural persons. The proposed amendment to the Copyright Act may affect enterprises' use of the technology, but it may also offer protection against misuse.
As described in our previous newsletter, the Danish Minister for Culture announced on 24 April 2025 that the government will invite the Parliament to negotiations of an amendment to the Copyright Act with the aim of making the distribution of manipulated content, such as deepfakes (realistic digitally generated imitations) illegal.
The proposed amendment to the Copyright Act was put out to public consultation on 7 July 2025. If adopted, Denmark will be the first country in the EU to regulate the use of deepfakes within the framework of copyright law.
Ban on deepfakes
The proposed amendment includes not only one, but two new provisions regarding deepfakes:
- S. 65 a on the prohibition against making deepfakes of performing artists' or artists' artistic performances available to the public without consent, and
- S. 73 a on the prohibition against making deepfakes of natural persons' personal, physical characteristics available to the public without consent.
All natural persons
With the new s. 73 a, a proposal is made to introduce a ban on deepfakes of natural persons' personal, physical characteristics. Personal, physical characteristics are to be understood as the traits and features that define a person and are unique to the individual, such as appearance, voice, movements, etc.
What is special about the proposed provision is that, unlike other provisions of the Copyright Act, it does not require the existence of a copyright-protected "work" or "performance", but the protection rather covers all natural persons. This applies regardless of whether they are artists or creators in the legal sense.
Thus, the protection comprises the unique characteristics of individuals, which are closely linked to one's person. For this reason, it is also proposed that consent to public disclosure must be given individually, and the area cannot be covered by a collective licence agreement.
The ban only applies to the public disclosure of deepfakes, meaning that there is nothing preventing deepfakes from being made available within the private sphere – such as at a private party or in relation to the right of reproduction.
The proposed protection of personal, physical characteristics has an important interface with the exception of parody, caricature and pastiche, which had previously been undefined by law but was codified in s. 24 b of the Copyright Act as from 1 July 2024. Therefore, the proposed s. 73 a(2) states that the protection does not cover imitations – primarily expressions of caricature, satire, parody, pastiche, power criticism, social criticism, etc. – unless the imitation constitutes misinformation that may pose a serious threat to the rights or significant interests of other persons.
The Ministry of Culture Denmark notes that caricatures, etc., will under certain circumstances – including their content and the context in which they are included –be covered by the proposed s. 73 a(1). This applies if they pose an actual threat to the rights or significant interests of other persons such as life, health, privacy, reputation or property due to the risk of confusion resulting from the realistic, digital imitation.
The protection will last for 50 years after the year of the imitated person's death, and while any violation of the ban is not punishable by a fine, it entitles the affected person(s) to compensation and damages.
Artists and performers
The new s. 65 a aims to protect performing artists and performers from deepfakes of their performances, aligning their protection with that of creators whose works may not be copied in their original or altered form.
The prohibition does not apply to private imitations that are not made public.
The proposed provision will be limited in two ways:
- Only deepfakes that are realistic and may be mistaken for, for example, a musician's voice or an actor's appearance will be covered. If the imitation is clearly marked as artificially generated, the risk of confusion is lower, and live concerts with look-alike or sound-alike bands will for example not be covered.
- The provision only applies to deepfakes that are published, not to the actual production of a deepfake.
The protection will last for 50 years after the year of the imitated person's death, differing from the protection laid down in s. 65(2)-(4), which is calculated from the time of performance, publication or public release. This is partly because it is considered particularly offensive when an artist's or performer's personal characteristics are used for deepfakes without consent, and partly because calculating the protection period is less complicated.
S. 65 a(3) refers to a number of provisions laid down in Chapter 2 of the Copyright Act, imposing limitations on the performing artist's or performer's exclusive right to make digitally generated imitations available to the public without consent.
The reference to Chapter 3 of the Copyright Act further implies that the rules on, among other things, collective licensing, licensing, amendments to the work, further transfer, inheritance and creditor pursuit will also apply to the proposed s. 65 a.
Current legislation in Denmark
Currently, the right to one's own name and image is regulated sporadically by way of various national and international acts as well as unwritten legal principles.
Under the Copyright Act, a photographer cannot use a commissioned portrait photo without the consent of the person who commissioned it. Similarly, the Danish Criminal Code prohibits the dissemination of messages and videos of individuals' private matters without consent, including sexual material, defamation and identity theft.
In addition, the Danish Marketing Practices Act, data protection legislation and the Executive Order on Advertising also impose restrictions on the use of personal images and information. Furthermore, the AI Act (Regulation 2024/1689) requires that it be disclosed when published content has been artificially generated or manipulated.
Finally, Danish law upholds two general, unwritten legal principles regarding the use of personal images:
- A person's image may not be commercially used without that person's permission, and
- Publicly known individuals may be entitled to compensation, provided that the publication of their image constitutes an infringement.
Thus, a characteristic of the current legal situation in Denmark concerning deepfakes is that technological development has outpaced legislation. This development makes interpretation of existing, technology-neutral rules crucial for the possibility of prohibiting deepfakes under current legislation, as the existing rules do not explicitly regulate deepfakes.
Protection of artists' artistic performances
S. 65 of the Copyright Act protects "the performance of a literary or artistic work by a performing artist" which excludes the protection of performances or acts not including literary or artistic works.
In the proposed amendment, the Ministry of Culture Denmark has emphasised that performances, in line with technological development, are in greater need of protection than before. Therefore, it is appropriate to supplement with a protection of artists' artistic performances rather than redefining the term "performing artist".
The proposal grants artists full protection of performances, for example, also the right to their own performance/artistic act, irrespective of whether it is linked to any work. However, the performance must be "artistic", and performances of a purely random nature – such as sports performances – are not subject to the extended protection.
The Ministry of Culture Denmark notes that it may be difficult to define what constitutes "artistic performances", and the Ministry lists a number of non-exhaustive criteria that should be included in the assessment, such as whether the performance has an aesthetic quality.
Significance of the legislative proposal for enterprises
The new provisions of the proposed amendment to the Copyright Act explicitly address how, when and in which cases the use of deepfakes will be legal. This may help enterprises and relevant stakeholders navigate the legislation more easily and assess in advance whether any specific use of deepfakes will be in violation of the law.
If the proposed amendments to the Copyright Act are adopted, they will introduce strict rules against the publication of deepfakes without consent, which may limit enterprises' rights to use this new technology in marketing or entertainment.
Enterprises will need to ensure that they have obtained sufficient consent, which in some cases will need to be obtained individually from the persons whose characteristics or performances they wish to use. Enterprises will be responsible for avoiding infringement of rights, which could lead to liability for damages. This may require changes to current business practices and potentially increase the costs of using deepfakes.
With the adoption of the new rules, however, enterprises that rely on rights – such as music and film producers – may experience a strengthening of their market positions.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
