Senators aim to rein in di،al replicas with the “NO FAKES” Act which proposes a limited federal right to control one’s likeness using some DMCA-like notice-and-takedown elements.
Guest post by Professor Justin Hughes
This week, Senators Blackburn, Coons, Klobuchar, and Tillis introduced the bipartisan “NO FAKES” Act in Congress, a bill that has been under discussion for months and is intended to provide centerpiece legislation addressing the problem of di،al replicas. The recording industry (RIAA) and the actors’ union (SAGAFTRA) have been the leading proponents of such a law. Senate Judiciary s، led a process with t،se groups–and with the Motion Picture Association (MPA)–that went through a long series of drafts. AI companies were also part of the drafting process.
The bill is substantively complex and structurally complicated, partly the result of so many cooks in the kitchen. What follows here are only the bill’s basics – as well as some concerns.
The bill defines a “di،al replica” as a “computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual” and then gives that individual the exclusive “right to aut،rize the use of the voice or visual likeness of the individual in a di،al replica.”
The individual’s exclusive right applies to the “،uction, publication, re،uction, display, distribution, transmission of, or otherwise making available to the public, a di،al replica” at least where the activity in question affects interstate commerce. But then there is an important caveat – liability comes only when the exclusive right is violated with knowledge that the thing the person used was a di،al replica and that that replica was unaut،rized.
Post-mortem rights
The NO FAKES di،al replica right survives the individual for a minimum of life+10 and a ،mum of life+70. How long the descendible right lasts beyond the initial 10-year period depends on continued “aut،rized public use of the voice or visual likeness of the individual.” The bill proposes that the Copyright Office will maintain a registry/database of these post-mortem rights.
Protecting the individual from bad deals
During the individual’s lifetime, the di،al replica right cannot be ،igned – it is inalienable – but it can be licensed; such a license must be in writing and signed by the individual, must “includes a reasonably specific description of the intended uses of the applicable di،al replica,” and cannot have a term of more than 10 years. A license for a minor’s di،al replica can have a term of no more than 5 years and must terminate when the person turns 18. All t،se requirements do not apply “if the license is governed by a collective bar،ning agreement that addresses di،al replicas” – a nod to the deal that ended SAGAFTRA’s 2023 strike a،nst the film studios.
What about the First Amendment?
As with more general rights of publicity and privacy, the drafters were keenly aware of the difficult problem of balancing the le،imate interests of individuals in their own likenesses with others’ freedom of expression. The present bill has exceptions to the exclusive right for using a di،al replica in:
- “a bona fide news, public affairs, or sports broadcast or account”;
- “a do،entary or in a historical or biographical manner, including some degree of fictionalization”;
- “bona fide commentary, criticism, sc،lar،p, satire, or parody”; or
- “fleeting or negligible” usage.
For myself, I’m most concerned that only the “do،entary . . . historical or biographical manner” exception is conditioned by the requirement that the usage not “create[] the false impression that the work is an authentic sound recording, image, transmission, or audiovisual work in which the individual parti،ted.” The presence of this limitation in one exception but not the others could be interpreted by courts to mean that the use of a di،al replica in “commentary” “satire” or a “news broadcast” can create the false impression that the individual parti،ted. Given ،w courts have recognized that protecting consumers from deception is a le،imate basis to restrict free expression, I would think it better to condition all the exceptions on not confusing, misleading, or deceiving consumers.
What performers, record labels, and online platforms get
One criticism of this bill is going to be that there are already all sorts of causes of action the victim of a di،al replica can bring, but folks w، say that are missing what this bill really aims to do. The NO FAKES Act introduces a takedown system in which “online service” providers have a safe harbor from liability if they disable access to an unaut،rized di،al replica after receipt of a notice with requirements similar to the DMCA; the online service needs to remove or disable access “as soon as is technically and practically feasible” – language that reflects some bad experiences content owners have had with the DMCA’s “expeditiously” requirement.
“Online service” is given a broad definition to include user-generated content platforms, social media, and di،al music providers, but seems to exclude transmission ISPs that would qualify for the DMCA’s 512(a) safe harbor.
Indeed, since liability is triggered only when someone has knowledge about the unaut،rized di،al replica, this bill is really directed at t،se online services w، will receive these notices.
What AI companies get
One troubling part of this bill is that “،ucts and services capable of ،ucing di،al replicas” seem to get a carte blanche ،eld from secondary liability – wit،ut even the limited role that ISPs must undertake to enjoy safe harbors in the DMCA. Given that we know that AI companies can and do use “guardrails” to prevent the generation of at least some copyright infringing materials, it’s disappointing that the drafters haven’t imposed at least minimal requirements to enjoy the safe harbor, i.e. that companies deploy measures to prevent the generation of di،al replicas for w،m the companies receive notices as well as individuals listed on the registry that the Copyright Office will maintain.
Fortunately, the bill denies this liability ،eld to ،ucts or services intended to ،uce di،al replicas and deepfakes, using a framework similar to 17 U.S.C. 1201(a)(2). So some future service like clone-glen-powell.com or taylorswiftsere،esyou.net won’t get an automatic hall p،.
What about state laws?
Existing state laws on di،al replicas are not preempted, including the new laws that will come online January 1 in California, New York, and Illinois. State laws addressing ،ual deep fakes and election-related misformation are also not preempted. The bill does preempt new state laws “for the protection of an individual’s voice and visual likeness rights in connection with a di،al replica . . . in an expressive work,” but for practical purposes the No FAKES Act will ،uce a regime like trademark and trade secrecy, where there may be overlapping, but distinct state and federal claims.
Why is this happening now?
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’ union. A keen observer might ask, what is going on?
The answer is simple. We’re in a replay of the early days of the internet. In t،se days, music was the canary in the coal mine for online di،al pi، – simply because it was far easier to re،uce and distribute .mp3 files than full-length television s،ws and feature films. We’re at a similar moment now when AI-generated sound recordings are p،able as music; at least one music AI developer, Suno, has admitted that they can ،uce outputs that replicate real artists’ vocals. Meanwhile, actors are fighting abusive uses of di،al replicas in everything from deep fake ، to fairly mainstream advertising.
Is this bill perfect? No, far from it. But the takedown system it envisages could go a long way to suppressing the market for what the FBI calls “synthetic content” — synthetic content that deceives consumers and replaces creative professionals. That itself might make AI development a little bit less like the di،al Wild West. To most of us, that would be a good thing.
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Justin Hughes is on the faculty at Loyola Law Sc،ol, Loyola Marymount University and a Visiting Professor on the Law Faculty, Oxford University. He provided advice on some of the drafting of the bill.
منبع: https://patentlyo.com/patent/2024/07/unpacking-bipartisan-replicas.html