IP Law Daily, TECHNOLOGY/INTERNET NEWS: Proposed ‘NO FAKES’ Act would bar unauthorized replicas of performers’ voices, likenesses, (Oct 13, 2023)
Organizations Mentioned:SAG-AFTRA
Sponsors of the bipartisan legislation say the measure is intended to curb the unfair use of generative-AI tech to create and distribute fake audiovisual or sound recordings.
Rapid advances in artificial intelligence (AI) technology have made it increasingly easy to use AI to generate fake versions of musical performers’ and other performing artists’ voices, images, and likenesses. This technological and social phenomenon has caught the attention of lawmakers in Washington, D.C., prompting a bipartisan group of senators to release a discussion draft of a proposed bill that would prohibit the production or distribution of unauthorized AI-generated replicas of an individual to perform in an audiovisual or sound recording without consent. If the proposed legislation is enacted, doing so would subject violators to liability for damages caused by the AI-generated fake. Titled the “Nurture Originals, Foster Art, and Keep Entertainment Safe Act” (or “NO FAKES Act”), the measure is intended to protect the voices and visual likenesses of individuals from unfair use through generative AI, according to a statement by Senate Judiciary Subcommittee on Intellectual Property Chair Chris Coons (D-Del.). Senators Marsha Blackburn (R-Tenn.), Amy Klobuchar (D-Minn.), and Thom Tillis (R-N.C.) have also signed on as sponsors.
The discussion draft of the bill defines “digital replica” as a newly created, computer-generated, electronic representation of the image, voice, or visual likeness of an individual that is nearly indistinguishable from the actual image, voice, or visual likeness of that individual; and is fixed in a sound recording or audiovisual work in which that individual did not actually perform or appear. Its definition of “individual” includes deceased as well as living persons.
The draft legislation also provides that the statute would hold “platforms” liable for hosting an unauthorized digital replica if the platform has knowledge of the fact that the replica was not authorized by the individual depicted. The term “platforms” is not defined, but it presumably would apply to such services as YouTube and Spotify. The sponsors’ media statement specifically pointed to an AI-generated song called “Heart on my Sleeve,” which replicated the voices of pop stars Drake and The Weeknd. According to the Senators, that song “accumulated hundreds of thousands of listens on YouTube, Spotify, and other streaming sites within days and was poised to appear on streaming charts before it was removed by streaming services.”
Property right. The right described by the bill is characterized in its text as a “property right” that is descendible and licensable. In addition, the right would not expire at the time of the subject individual’s death, “without regard to whether the right is commercially exploited by that individual during the lifetime of the individual.” A license agreement transferring the right would be valid only if the subject individual was represented by counsel and the transaction was in writing, or the licensing was governed by a collective bargaining agreement.
Exclusions; time limitations; defenses. The draft bill contains exclusions for the representation of an individual in works that are protected by the First Amendment, such as sports broadcasts, documentaries, biographical works, or for purposes of comment, criticism, or parody. The law would have a three-year statute of limitations dating from the time the injured party discovered or reasonably should have discovered the violation. Adding a disclaimer to the effect that the replica was unauthorized or made without the subject individual’s participation would not be a defense in a civil action brought under the Act. The draft states that the law will not have retroactive effect.
Remedies. The bill provides for damages of $5,000 per violation or actual damages suffered by the subject individual, whichever is greater. Punitive damages would be available as a remedy in cases involving willful violations “where the injured party has proven that the defendant acted with malice, fraud, or oppression.” The bill also states that “the court may award to the prevailing party reasonable attorneys’ fees.”
Sponsors’ views. “Generative AI has opened doors to exciting new artistic possibilities, but it also presents unique challenges that make it easier than ever to use someone’s voice, image, or likeness without their consent,” said Senator Coons. Senator Klobuchar said that the legislation was needed to “put in place rules of the road to protect people from having their voice and likeness replicated through AI without their permission.” Senator Blackburn emphasized the importance of “protecting our creative community, preventing AI models from stealing someone’s NIL [name, image, and likeness].” Added Senator Tillis, “I’m proud to co-introduce this draft legislation to create safeguards from AI and protect the authentic work of these artists.”
Section 230 exclusion. The draft bill provides that the legislation would be considered a law pertaining to intellectual property for the purposes of Section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 230(e)(2)). Section 230(e)(2) states that the immunity from liability given to providers of interactive service providers by Section 230 does not extend to IP laws. Congress has occasionally specified in legislative whether or not it should be deemed “a law pertaining to intellectual property.” For example, Section 2(g) of the Defend Trade Secrets Act (DTSA),P.L. 114-153, states that that law “shall not be construed to be a law pertaining to intellectual property for purposes of any other Act of Congress.” At least one court has interpreted that statement to mean that Section 230’s immunity did operate to bar a DTSA claim (Craft Beer Stellar, LLC v. Glassdoor, Inc., D. Mass., No. 1:18-cv-10510-FDS, October 17, 2018). Although the discussion draft’s text doesn’t indicate where or how exactly the new statute would be codified—whether as part of Title 15, Title 17, or another title—the NO FAKES Act’s indication that the law is an IP law makes it clear that the drafters do not intend for violators to be able to use the Section 230 safe harbor.
Industry reactions. The Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA)—the media professionals’ union that is currently embroiled in a weeks-long strike against movie and television production studios that was largely prompted by fears over uses of AI to displace human actors—applauded the bill’s announcement.
“A performer’s voice and their appearance are all part of their unique essence, and it’s not ok when those are used without their permission,” said SAG-AFTRA President Fran Drescher. “Consent is key, and I’m grateful that Sens. Coons, Blackburn, Klobuchar and Tillis are working to give performers recourse and providing tools to remove harmful material.”
The Recording Industry Association of America (RIAA) and the American Association of Independent Music also reportedly welcomed the announcement.
In a statement also expressing support for the bill, advocacy group The Human Artistry Campaign—what was specifically created to address the “responsible” use of AI in artistic and entertainment media—said that “generative AI applications that steal copyrighted recordings and images to produce voice clones and digital replicas or misappropriate the names and likenesses of artists and performers without consent are incredibly harmful to our society and culture.” The organization added, “We look forward to working with all stakeholders to strengthen this proposal while providing clear and effective remedies to stop the wrongful appropriation of creators’ identities and encourage ethical AI practices.”
A statement by the Motion Picture Association (MPA, formerly known as MPAA) seemed to indicate support for the bill’s aims but with less enthusiasm than organizations representing artists and performers. “We look forward to working with [the Senators], their staff, other members of Congress, and other stakeholders to ensure any eventual legislation establishes adequate protections against harmful uses of digital replicas without infringing on the First Amendment rights and creative freedoms upon which our industry depends,” the MPA said.
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