The Texas offense of Unlawful Production Or Distribution Of Certain Sexually Explicit Videos was intended to combat “Deep Fake” pornography, making it criminal to produce deepfake videos that depict someone engaging in sexual acts (or even just naked) without the depicted-person’s permission.

With the rapid expansion of artificial intelligence, the pornography industry has proven once again to be an early adapter, and the Texas legislature decided to take action with this new law in 2023.

Utilizing artificial intelligence to create “deep fake” pornography has become already almost ubiquitous. Deep fakes are videos and images that are digitally created and altered to look like a real person. This has understandably caused some consternation among people who don’t want to appear in porn videos. Learn more about this new offense below.

What is the current Texas law about Unlawful Production Or Distribution Of Certain Sexually Explicit Videos?

The current Texas law defines the offense of Unlawful Production Or Distribution Of Certain Sexually Explicit Videos in Penal Code Section §21.165 as follows:^[1]

(b) A person commits an offense if, without the effective consent of the person appearing to be depicted, the person knowingly produces or distributes by electronic means a deep fake video that appears to depict the person with the person’s intimate parts exposed or engaged in sexual conduct.

Deep fake videos are defined in the statute as “a video, created with the intent to deceive, that appears to depict a real person performing an action that did not occur in reality.”^[2]

This offense was created by the 88th Legislature in 2023,^[3] effective September 1, 2023.^[4]

How can I be charged with Unlawful Production Or Distribution Of Certain Sexually Explicit Videos?

You can be charged with Unlawful Production Or Distribution Of Certain Sexually Explicit Videos if the state’s attorneys believe that each of the elements of 21.165 as described in the section above have been met.

What is the punishment for the Texas Deepfake Pornography law?

Unlawful Production Or Distribution Of Certain Sexually Explicit Videos is punished as a Class A misdemeanor ^[5]

What are deepfakes?

The term “deepfake” is a portmanteau combining “deep learning” and “fake.” In usage today, it commonly refers to videos generated using machine-learning techniques or artificial intelligence that combine existing images and videos in a way that produces very realistic-looking videos of events that were never actually recorded. This meanns that deepfakes can depict people “saying” things they have not said or doing things they did not do.

Is it illegal to make a deepfake in Texas?

There are two laws governing deepfake videos in Texas as of 2023. One is the topic of this page, the other is called True Source of Communication, and that one prohibits deepfakes from use in the political arena. The True Source of Communications law was passed in 2019.

How can you spot a Deepfake?

It is getting increasingly difficult to spot a deepfake video, but some red flags include: strange blinking patterns (or no blinking), uneven skin tones, lip movements that don’t match words, and inconsistency in details such as hair, clothes or jewelry.

Do you need a deepfake law attorney?

If you have been charged with producing deepfakes either under this law or another law, then you should definitely hire an attorney to help protect you. If you have been contacted by the police, please give us a call before speaking with them.

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Legal References:

^1. Texas Penal Code §21.165^2. Texas Penal Code §21.165(a)(1)^3. SB 1263, 88th Texas Legislature (RS), Section 1^4. SB 1263, 88th Texas Legislature (RS), Section 2^5. Texas Penal Code §21.165(c)