NO FAKES Act Archives

House Backs Senate With Its Own Proposed NO FAKES Act to Control Digital Replicas

Following the introduction of the NO FAKES Act of 2024 in July by a bipartisan group of US Senators, US Representatives Adam Schiff (D-CA), María Elvira Salazar (R-FL), Madeleine Dean (D-PA), Nathaniel Moran (R-TX), Rob Wittman (R-VA), and Joe Morelle (D-NY) introduced the identically named companion legislation, Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act, in the US House of Representatives on September 12, 2024. The language of both bills is substantially identical, with the intended purpose to create federal protection of “…intellectual property rights in the voice and visual likeness of individuals, and for other purposes.”

As described by Representative Schiff’s office in a news release announcing the bill, the House’s NO FAKES Act is intended to:

Recognize that every individual has a federal intellectual property right to their own voice and likeness, including an extension of that right post-mortem
Empower individuals to take action against parties that knowingly create, post, or profit from unauthorized digital replicas of them
Provide a safe harbor for platforms if they take down offending materials when they discover them or upon receiving proper takedown notices
Maintain protections for innovation and free speech
Provide a federal solution to a patchwork of state laws and regulations by January 2, 2025 – at least as it relates to digital replicas of individuals.

The rights established under the House’s NO FAKES Act will preempt any cause of action under state law for the protection of an individual’s voice and visual likeness rights in connection with a digital replica. We will continue to watch whether these bills are passed in identical form and signed by the incoming US president in 2025.

NO FAKES Act Would Create Individual Property Right to Control Digital Replicas

On July 31, 2024, a bipartisan group of US senators introduced the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act of 2024 to protect the voice and visual likeness rights of individuals from unauthorized use in the form of digital replicas, including digital replicas created by generative artificial intelligence (AI). The bill was introduced by Senators Chris Coons (D-DE), Marsha Blackburn (R-TN), Amy Klobuchar (D-MN) and Thom Tillis (R-NC) and follows a discussion draft released in October 2023. The press release from Senator Coons’ office makes note of the many organizations that support the proposed legislation and includes quotes from representatives of SAG-AFTRA, the Recording Industry Association of America, the Motion Picture Association, OpenAI, IBM and Creative Artists Agency.

Designed to protect all individuals (not just celebrities), the bill defines a digital replica as a newly created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual and that is embodied in a sound recording, image, audiovisual work or transmission in which the actual individual did not perform or appear, or a version of such work in which the fundamental character of the performance or appearance has been materially altered. The bill would grant each individual or right holder the right to authorize the use of their voice or visual likeness in a digital replica, which the bill states is a property right. The bill also would establish the characteristics, requirements and duration of the license rights that can be granted in a digital replica. The right to authorize the use of an individual’s voice or visual likeness in a digital replica would not expire upon the death of the individual and would be transferable and licensable (subject to certain time limitations on the post-mortem right and registration requirements with the Register of Copyrights).

The bill would create a civil cause of action for a rights holder against any person that produces or makes available to the public an unauthorized digital replica and would provide for injunctive relief, actual or statutory damages, punitive damages and attorneys’ fees. There would be a limitations period, however, and any civil action would have to be commenced no later than three years after the date on which a rights holder discovered – or with due diligence should have discovered – the violation at issue. The bill provides certain exceptions and safe harbors for the production or use of digital replicas in news, public affairs, sports, documentaries, commentary, criticism, scholarship, satire or parody, or for online services that remove or disable access to unauthorized digital replicas upon receiving a notification from the rights holder.

The bill would preempt any cause of action under state law for the protection of voice and visual likeness rights in connection with a digital replica in an expressive work, except for certain existing state statutes or common law or state statutes regulating sexually explicit or election-related digital replicas.

On August 5, 2024, the US Patent & Trademark Office hosted [...]

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