IP Law Daily, PUBLICITY RIGHTS NEWS: Illinois enacts law to protect artists from AI impersonation, (Aug 16, 2024)

By George Basharis, J.D.

Governor Pritzker signs HB 4875, making Illinois the second state to ban unauthorized digital replicas created by generative AI and bolstering artists’ rights in the digital age.

On August 9, 2024, Illinois took a significant step in protecting artists’ rights in the era of artificial intelligence by enacting House Bill 4875 into law. Signed by Governor J.B. Pritzker, this groundbreaking legislation updates the state’s Right of Publicity Act to address the challenges posed by generative AI technology. The new law makes Illinois the second state in the nation, following Tennessee, to enact such protections for creators against unauthorized digital replicas.

Expanding the right of publicity. HB 4875 expands Illinois’ existing Right of Publicity Act, which has been in effect since 1999. The original law required written consent to use an individual’s likeness for commercial purposes during their lifetime and for 50 years following death. The new legislation goes further by specifically addressing the creation and distribution of unauthorized digital replicas.

Under the new law, it is now illegal to knowingly distribute or make public any sound recording or audiovisual work containing an unauthorized digital replica. The bill defines a “digital replica” as a newly created electronic representation of an individual’s voice, image, or likeness created by computer, AI system, or other technology, which a reasonable person would believe is imitating a particular individual.

Protecting artists in the age of AI. The legislation comes at a crucial time when generative AI technology is rapidly advancing, posing new challenges to artists’ rights and livelihoods. Rep. Jennifer Gong-Gershowitz, who sponsored the bill, highlighted this urgency: “The growing use of Generative AI has led to a situation wherein artists’ likeness can be recreated and used to generate new content without compensating—or even notifying—the human artist. HB 4875 protects artists from this new form of economic exploitation by creating a path to restitution for victims.”

Key provisions of the law. The new legislation introduces several crucial provisions to protect artists’ rights in the digital age. The law extends civil liability beyond those who directly distribute unauthorized digital replicas to include anyone who contributes to or induces such distribution after gaining actual knowledge of the violation. This broadens the scope of accountability for infringement. However, the law also provides a safe harbor provision, allowing parties that obtain actual knowledge of a violation to evade liability if they move quickly to disable access to the infringing material.

In line with existing digital copyright protections, the law incorporates the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions for transmissions of copyright infringing material. This alignment with federal standards ensures consistency in digital rights management. The legislation also enhances enforcement capabilities for recording artists, authorizing both the artists themselves and parties contracting with them for exclusive distribution rights to enforce their rights against unauthorized digital replicas.

Importantly, the law adopts a broad definition of generative AI, encompassing systems that create textual outputs as well as audio and visual replicas. This comprehensive approach potentially expands the law’s reach, addressing a wide range of AI-generated content that could infringe on an individual’s right of publicity. By doing so, the law aims to future-proof artist protections against rapidly evolving AI technologies.

Exceptions and limitations. While the new law provides robust protections for artists’ rights, it also includes several key exceptions to ensure freedom of expression and legitimate uses of digital technology. Uses of an individual’s identity in news, sports broadcasts, or for political or public interest purposes are generally exempt from liability, unless they create a false impression of authenticity.

Similarly, the law permits the use of digital replicas in documentary or biographical works, with the same caveat against creating false impressions. Recognizing the importance of artistic and social commentary, the legislation explicitly exempts uses of digital replicas for satire or parody from liability. Additionally, promotional materials or commercial announcements for uses that are otherwise permitted under the law are also exempt. These carefully crafted exceptions aim to strike a balance between protecting artists' rights and preserving important forms of speech and expression in the digital age.

Industry support and advocacy. The Recording Academy, a prominent advocate for musicians’ rights, played a crucial role in championing HB 4875. Todd Dupler, the Recording Academy’s Chief Advocacy Officer, expressed enthusiasm for the new law: “We are thrilled to celebrate Gov. Pritzker's signing of HB 4875 as Illinois becomes the second state in the nation to update its right of publicity law to protect creators in the age of artificial intelligence.

The Academy’s efforts included testifying before both chambers of the Illinois legislature and organizing lobbying efforts with its Chicago Chapter members. Recording Academy National Trustee Dani Deahl and Chicago Chapter Board Member Jeff Becker provided key testimony, highlighting the potential dangers that AI-generated replicas pose to artists' rights and livelihoods.

National implications and future legislation. Illinois' new law, along with Tennessee’s earlier ELVIS Act, sets a precedent for other states considering similar legislation. At the federal level, a bipartisan group of U.S. Senators recently introduced the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act, which aims to establish the first-ever nationwide right of publicity.

The U.S. Copyright Office has also weighed in on the issue, recommending the passage of such a law in its report on digital replicas, published concurrently with the introduction of the NO FAKES Act.

Challenges and considerations. While the law represents a significant step forward in protecting artists’ rights, it also raises questions about implementation and potential impacts on innovation. The broad definition of generative AI in the law could have far-reaching implications beyond just audio and visual replicas, potentially affecting a wide range of AI-generated content.

Additionally, the law’s application to broadband service providers, albeit limited to cases where they are responsible for creating unauthorized digital replicas, may spark debates about the responsibilities of internet intermediaries in the age of AI.

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