IP Law Daily, COPYRIGHT NEWS: On digital replicas, Copyright Office asks and Congress responds, (Aug 1, 2024)

By Matthew Hersh, J.D.

The Office calls for federal action to protect against digital replicas, and legislation is introduced to do just that.

New federal legislation is “urgently needed” to protect all individuals—celebrity and non-celebrity alike—from the knowing distribution of unauthorized digital replicas, the Copyright Office has concluded in an extensive new report. The report, the first of three long-awaited reports that the Office is undertaking on artificial intelligence, was issued on the same day that a bipartisan group of Senators formally introduced legislation—the NO FAKES ACT—to address many of the same concerns.

The Office’s report arises out of a broad initiative started in 2023 to explore the intersection of copyright and artificial intelligence. Since then, the Office noted in a press release accompanying the report, the Office has issued registration guidance for works incorporating AI-generated content, hosted public listening sessions and webinars, met with numerous experts and stakeholders, published a notice of inquiry seeking input from the public, and reviewed the more than 10,000 responsive comments.

The report wastes no time in depicting the challenges posed by artificial intelligence. “From AI-generated musical performances to robocall impersonations of political candidates to images in pornographic videos,” the report states in its first paragraph, “an era of sophisticated digital replicas has arrived. Although technologies have long been available to produce fake images or recordings, generative AI2 technology’s ability to do so easily, quickly, and with uncanny verisimilitude has drawn the attention and concern of creators, legislators, and the general public.” As a result, the report concludes, “the speed, precision, and scale of AI-created digital replicas calls for prompt federal action.”

The report outlines a wide range of recommendations about how such a new federal law should be crafted. The statute should be at once narrower and broader that the current patchwork of state laws protecting the right of publicity. On the one hand, the report noted, the statute should target only “those digital replicas, whether generated by AI or otherwise, that are so realistic that they are difficult to distinguish from authentic depictions.” The statute would thus be narrower than the broader “name, image, and likeness” protections offered by many states. On the other hand, the report emphasizes, the statute “should cover all individuals, not just celebrities, public figures, or those whose identities have commercial value”—something that is lacking in many state statutes. “Everyone is vulnerable to the harms that unauthorized digital replicas can cause,” the report states, “regardless of their level of fame or prior commercial exposure.”

The report contains a wide range of recommendations for such a federal statute. Liability should arise only from “the distribution or making available of an unauthorized digital replica, but not the act of creation alone,” the report notes. Liability should also not be limited to commercial uses, the report noted, “as the harms caused are often personal in nature.” Notably, the report stays away from taking position on one controversial issue, saying only that protection should endure “at least” for the individual’s lifetime. However, any postmortem protection should be limited in duration, the report notes, “potentially with the option to extend the term if the individual’s persona continues to be exploited.”

NO FAKES Act proposal. But the Copyright Office was not the only government entity to make waves on the digital replica front. Yesterday was also the day that Senators Chris Coons (D-Del.), Marsha Blackburn (R-Tenn.), Amy Klobuchar (D-Minn.), and Thom Tillis (R-N.C.) formally introduced the Nurture Originals, Foster Art, and Keep Entertainment Safe Act, or NO FAKES Act, intended to protect the voice and visual likenesses of creators and individuals from the proliferation of digital replicas created without their consent.

The bill, according to a release from the Senators, “would hold individuals or companies liable for damages for producing, hosting, or sharing a digital replica of an individual performing in an audiovisual work, image, or sound recording that the individual never actually appeared in or otherwise approved.” The authors of the legislation claim that the NO FAKES Act “balances the need to protect individuals and creators, First Amendment considerations, and fostering U.S. leadership and innovation in AI.” A section by section summary of the NO FAKES Act may be found here. Broadly, the legislation would:

• hold individuals or companies liable if they produce an unauthorized digital replica of an individual in a performance;

• hold platforms liable for hosting an unauthorized digital replica if the platform has actual knowledge of the fact that the replica was not authorized by the individual depicted;

• exclude certain digital replicas from coverage based on recognized First Amendment protections; and

• largely preempt State laws addressing digital replicas to create a workable national standard.

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