IP Law Daily, PUBLICITY RIGHTS NEWS—NO FAKES Act would combat AI and digital replicas, (Aug 2, 2024)

By Brian Craig, J.D.

The proposed legislation would establish a federal property right of an individual’s own voice and likeness.

In an effort to protect the voice and visual likenesses of individuals from unfair use through generative artificial intelligence (AI), senators have introduced the Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2024 (NO FAKES Act). The proposed legislation sponsored by Senators Chris Coons (D-DE), Marsha Blackburn (R-TN), Amy Klobuchar (D-MN), and Thom Tillis (R-NC), aims to address the use of non-consensual digital replications in audiovisual works, images, or sound recordings.

Key provisions. The legislation would hold individuals or companies liable if they produce an unauthorized digital replica of an individual in a performance. If passed, the measure would 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 in the digital replica. In addition, the NO FAKES Act would preempt state laws addressing digital replicas to create a workable national standard. The bill includes a three-year statute of limitations running from the date the plaintiff discovered “or with due diligence should have discovered” the violation.

Duration. The right is not assignable during the life of the right holder but is licensable for up to 10 years, or five years for minors under age 18. The right expires 70 years after the death of the individual. The bill includes post-mortem transfer of the right and renewal procedures.

Remedies. Remedies for civil liability include up to $5,000 per work embodying the unauthorized digital replica or actual damages for individuals who engage in prohibited activity; $5,000 per violation or actual damages for online services; the greater of $25,000 per work embodying the unauthorized digital replica or actual damages for entities that are not online services. The bill does not include any criminal penalties, but injunctive relief is available. In the case of a willful violation where the injured party has proven that the defendant acted with malice, fraud, or oppression, the court may award to the injured party punitive damages. In addition, the court may award to the prevailing party reasonable attorneys’ fees.

Exemptions. The bill text excludes certain digital replicas from coverage based on recognized First Amendment protections. The bill includes an exemption if the digital replica is used as part of a news, public affairs, or sports broadcast or report. In addition, the measure includes an exemption if the digital replica is used in a documentary, docudrama, or historical or biographical work. Sponsors of the bill seek to balance the need to protect individuals and creators, First Amendment considerations, and fostering U.S. leadership and innovation in AI.

Support. The NO FAKES Act has received bipartisan support from Senators and from various industry groups, according to the bill’s sponsors. This bill is endorsed by the Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA), the Recording Industry Association of America, the Motion Picture Association, the Recording Academy, OpenAI, IBM, The Walt Disney Company, Warner Music Group, Universal Music Group, Sony Music, the Independent Film & Television Alliance, William Morris Endeavor, Creative Arts Agency, the Authors Guild, and Vermillio.

“With AI technology becoming increasingly powerful, I’m thrilled to see this important legislation to protect human beings from abuses, exploitation, and fraud,” said Fran Drescher, President, SAG-AFTRA. “For SAG-AFTRA members, the NO FAKES Act is especially important since our livelihoods are intrinsically linked with our likenesses.”

“Everyone deserves the right to own and protect their voice and likeness, no matter if you’re Taylor Swift or anyone else,” said Senator Coons. “Generative AI can be used as a tool to foster creativity, but that can’t come at the expense of the unauthorized exploitation of anyone’s voice or likeness.”

“Artists’ rights to their voice, image, and likeness must be protected under the law, and the NO FAKES Act is an important first step in protecting our creative community against the misuse of generative AI,” said Senator Blackburn.

Charles Rivkin, Chairman and CEO, Motion Picture Association (MPA) echoes support for the bill saying, “We support protecting performers from generative AI abuse—and this bill thoughtfully establishes federal protections against harmful uses of digital replicas, while respecting First Amendment rights and creative freedoms. We particularly appreciate the sponsors’ inclusion of safeguards intended to prevent the chilling of constitutionally protected speech such as biopics, docudramas, parody and satire—which will be necessary for any new law to be durable.”

Calls for reform. The bill comes after a hearing in April 2024 of the U.S. Senate Judiciary Committee’s Subcommittee on Intellectual Property in which six witnesses testified about the need to strike the right balance in drafting the bill. In one high profile example, the song “Heart on My Sleeve,” which was created with AI-generated replicas of the voices of pop stars Drake and The Weeknd, quickly accumulated hundreds of thousands of listens on YouTube, Spotify, and other streaming sites before it was identified as a fake and removed from the platforms. An AI-generated version of Tom Hanks was used in advertisements for a dental plan that he never appeared in or otherwise endorsed. More recently, a principal at a Baltimore, Maryland high school was framed as a racist by an AI-generated recording of his voice.

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