{"id":13010,"date":"2024-08-01T11:42:30","date_gmt":"2024-08-01T15:42:30","guid":{"rendered":"https:\/\/cip2.gmu.edu\/?p=13010"},"modified":"2026-02-03T20:00:37","modified_gmt":"2026-02-03T20:00:37","slug":"no-fakes-act-unpacking-the-new-bipartisan-bill-on-digital-replicas","status":"publish","type":"post","link":"https:\/\/blogs.uakron.edu\/ualawip\/2024\/08\/01\/no-fakes-act-unpacking-the-new-bipartisan-bill-on-digital-replicas\/","title":{"rendered":"[Archived Post] NO FAKES Act: Unpacking the New Bipartisan Bill on Digital Replicas"},"content":{"rendered":"<p><em>The following post was <a href=\"https:\/\/patentlyo.com\/patent\/2024\/07\/unpacking-bipartisan-replicas.html\" target=\"_blank\" rel=\"noopener\">originally published<\/a> on the Patently-O blog and is cross-posted here with permission from both Patently-O and the author.<\/em><\/p>\n<p style=\"text-align: left\">Senators aim to rein in digital replicas with the \u201cNO FAKES\u201d Act which proposes a limited federal right to control one\u2019s likeness using some DMCA-like notice-and-takedown elements.<\/p>\n<hr \/>\n<p><em>Guest post by <a href=\"https:\/\/www.lls.edu\/faculty\/facultylisth-k\/justinhughes\/\" target=\"_blank\" rel=\"noopener\">Professor Justin Hughes<\/a><\/em><\/p>\n<p>This week, Senators Blackburn, Coons, Klobuchar, and Tillis introduced the bipartisan \u201cNO FAKES\u201d Act in Congress, a bill that has been under discussion for months and is intended to provide centerpiece legislation addressing the problem of digital replicas.\u00a0 The recording industry (RIAA) and the actors\u2019 union (SAGAFTRA) have been the leading proponents of such a law.\u00a0 Senate Judiciary staff led a process with those groups\u2013and with the Motion Picture Association (MPA)\u2013that went through a long series of drafts.\u00a0 AI companies were also part of the drafting process.<\/p>\n<ul>\n<li style=\"list-style-type: none\">\n<ul>\n<li>Read the Bill:\u00a0<a href=\"https:\/\/cdn.patentlyo.com\/media\/2024\/07\/no_fakes_act_bill_text1.pdf\">No FAKES Act text<\/a><\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p>The bill is substantively complex and structurally complicated, partly the result of so many cooks in the kitchen.\u00a0 What follows here are only the bill\u2019s basics \u2013 as well as some concerns.<\/p>\n<p>The bill defines a \u201cdigital replica\u201d as a \u201ccomputer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual\u201d and then gives that individual the exclusive \u201cright to authorize the use of the voice or visual likeness of the individual in a digital replica.\u201d<\/p>\n<p>The individual\u2019s exclusive right applies to the \u201cproduction, publication, reproduction, display, distribution, transmission of, or otherwise making available to the public, a digital replica\u201d at least where the activity in question affects interstate commerce.\u00a0 But then there is an important caveat \u2013 liability comes only when the exclusive right is violated with\u00a0<em>knowledge<\/em>\u00a0that the thing the person used was a digital replica and that that replica was unauthorized.<\/p>\n<p><em>Post-mortem rights<\/em><\/p>\n<p>The NO FAKES digital replica right survives the individual for a minimum of life+10 and a maximum of life+70.\u00a0 How long the descendible right lasts beyond the initial 10-year period depends on continued \u201cauthorized public use of the voice or visual likeness of the individual.\u201d\u00a0 The bill proposes that the Copyright Office will maintain a registry\/database of these post-mortem rights.<\/p>\n<p><em>Protecting the individual from bad deals<\/em><\/p>\n<p>During the individual\u2019s lifetime, the digital replica right cannot be\u00a0<em>assigned<\/em>\u00a0\u2013 it is inalienable \u2013 but it can be licensed; such a license must be in writing and signed by the individual, must \u201cincludes a reasonably specific description of the intended uses of the applicable digital replica,\u201d and cannot have a term of more than 10 years.\u00a0\u00a0 A license for a minor\u2019s digital replica can have a term of no more than 5 years and must terminate when the person turns 18.\u00a0 All those requirements do not apply \u201cif the license is governed by a collective bargaining agreement that addresses digital replicas\u201d \u2013 a nod to the deal that ended SAGAFTRA\u2019s 2023 strike against the film studios.<\/p>\n<p><em>What about the First Amendment?<\/em><\/p>\n<p>As with more general rights of publicity and privacy, the drafters were keenly aware of the difficult problem of balancing the legitimate interests of individuals in their own likenesses with others\u2019 freedom of expression.\u00a0 The present bill has exceptions to the exclusive right for using a digital replica in:<\/p>\n<ul>\n<li style=\"list-style-type: none\">\n<ul>\n<li>\u201ca bona fide news, public affairs, or sports broadcast or account\u201d;<\/li>\n<li>\u201ca documentary or in a historical or biographical manner, including some degree of fictionalization\u201d;<\/li>\n<li>\u201cbona fide commentary, criticism, scholarship, satire, or parody\u201d; or<\/li>\n<li>\u201cfleeting or negligible\u201d usage.<\/li>\n<\/ul>\n<\/li>\n<\/ul>\n<p>For myself, I\u2019m most concerned that only the \u201cdocumentary . . . historical or biographical manner\u201d exception is conditioned by the requirement that the usage\u00a0<strong><em>not\u00a0<\/em><\/strong>\u201ccreate[] the false impression that the work is an authentic sound recording, image, transmission, or audiovisual work in which the individual participated.\u201d The presence of this limitation in one exception but not the others could be interpreted by courts to mean that the use of a digital replica in \u201ccommentary\u201d \u201csatire\u201d or a \u201cnews broadcast\u201d\u00a0<strong><em>can\u00a0<\/em><\/strong>create the\u00a0<strong><em>false<\/em><\/strong>\u00a0impression that the individual participated.\u00a0\u00a0 Given how courts have recognized that protecting consumers from deception is a legitimate basis to restrict free expression, I would think it better to condition all the exceptions on\u00a0<strong><em>not\u00a0<\/em><\/strong>confusing, misleading, or deceiving consumers.<\/p>\n<p><em>What performers, record labels, and online platforms get<\/em><\/p>\n<p>One criticism of this bill is going to be that there are already all sorts of causes of action the victim of a digital replica can bring, but folks who say that are missing what this bill really aims to do.\u00a0 The NO FAKES Act introduces a takedown system in which \u201conline service\u201d providers have a safe harbor from liability if they disable access to an unauthorized digital replica after receipt of a notice with requirements similar to the DMCA; the online service needs to remove or disable access\u00a0 \u201cas soon as is technically and practically feasible\u201d \u2013 language that reflects some bad experiences content owners have had with the DMCA\u2019s \u201cexpeditiously\u201d requirement.<\/p>\n<p>\u201cOnline service\u201d is given a broad definition to include user-generated content platforms, social media, and digital music providers, but seems to exclude transmission ISPs that would qualify for the DMCA\u2019s 512(a) safe harbor.<\/p>\n<p>Indeed, since liability is triggered only when someone has\u00a0<em>knowledge<\/em>\u00a0about the\u00a0<em>unauthorized<\/em>\u00a0digital replica, this bill is really directed at those online services who will receive these notices.<\/p>\n<p><em>What AI companies get<\/em><\/p>\n<p>One troubling part of this bill is that \u201cproducts and services capable of producing digital replicas\u201d seem to get a carte blanche shield from secondary liability \u2013 without even the limited role that ISPs must undertake to enjoy safe harbors in the DMCA.\u00a0 Given that we know that AI companies can and do use \u201cguardrails\u201d to prevent the generation of at least\u00a0<em>some\u00a0<\/em>copyright infringing materials, it\u2019s disappointing that the drafters haven\u2019t imposed at least\u00a0<em>minimal<\/em>\u00a0requirements to enjoy the safe harbor, i.e. that companies deploy measures to prevent the generation of digital replicas for whom the companies receive notices as well as individuals listed on the registry that the Copyright Office will maintain.<\/p>\n<p>Fortunately, the bill denies this liability shield to products or services\u00a0<em>intended<\/em>\u00a0to produce digital replicas and deepfakes, using a framework similar to 17 U.S.C. 1201(a)(2).\u00a0 So some future service like\u00a0<em>clone-glen-powell.com<\/em>\u00a0or\u00a0<em>taylorswiftserenadesyou.net<\/em>\u00a0won\u2019t get an automatic hall pass.<\/p>\n<p><em>What about state laws?<\/em><\/p>\n<p>Existing state laws on digital replicas are not preempted, including the new laws that will come online January 1 in California, New York, and Illinois.\u00a0\u00a0 State laws addressing sexual deep fakes and election-related misformation are also not preempted.\u00a0\u00a0 The bill does preempt new state laws \u201cfor the protection of an individual\u2019s voice and visual likeness rights in connection with a digital replica . . . in an expressive work,\u201d but for practical purposes the No FAKES Act will produce a regime like trademark and trade secrecy, where there may be overlapping, but distinct state and federal claims.<\/p>\n<p><em>Why is this happening now?<\/em><\/p>\n<p>Normally you might expect the record labels, as major content owners, to have their interests more aligned with the motion picture studios, not the actors\u2019 union.\u00a0 A keen observer might ask, what is going on?<\/p>\n<p>The answer is simple.\u00a0 We\u2019re in a replay of the early days of the internet.\u00a0 \u00a0In those days, music was the canary in the coal mine for online digital piracy \u2013 simply because it was far easier to reproduce and distribute .mp3 files than full-length television shows and feature films. We\u2019re at a similar moment now when AI-generated sound recordings are passable as music; at least one music AI developer, Suno, has admitted that they can produce outputs that replicate real artists\u2019 vocals. Meanwhile, actors are fighting abusive uses of digital replicas in everything from deep fake porn to fairly mainstream advertising.<\/p>\n<p>Is this bill perfect?\u00a0 No, far from it.\u00a0 But the takedown system it envisages could go a long way to suppressing the market for what the FBI calls \u201csynthetic content\u201d \u00a0\u2014 synthetic content that deceives consumers and replaces creative professionals.\u00a0 That itself might make AI development a little bit less like the digital Wild West.\u00a0 To most of us, that would be a good thing.<\/p>\n<hr \/>\n","protected":false},"excerpt":{"rendered":"<p>The following post was originally published on the Patently-O blog and is cross-posted here with permission from both Patently-O and the author. Senators aim to rein in digital replicas with the \u201cNO FAKES\u201d Act which proposes a limited federal right to control one\u2019s likeness using some DMCA-like notice-and-takedown elements. Guest post by Professor Justin Hughes [&hellip;]<\/p>\n","protected":false},"author":3627,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-13010","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/13010","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/users\/3627"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/comments?post=13010"}],"version-history":[{"count":1,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/13010\/revisions"}],"predecessor-version":[{"id":15580,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/posts\/13010\/revisions\/15580"}],"wp:attachment":[{"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/media?parent=13010"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/categories?post=13010"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.uakron.edu\/ualawip\/wp-json\/wp\/v2\/tags?post=13010"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}