A Federal Right of Publicity for the Age of AI? Unpacking the Proposed NO FAKES Act

Client Alert

Artificial intelligence-generated deepfakes—video, audio, or photographic content that mimics some or all of the characteristics of one’s identity—have captured the wary attention of the public, politicians and the entertainment industry, among others. While copyright laws have been frequently invoked when considering generative AI training and outputs, concerns have been raised about whether current state right of publicity laws are sufficient to guard against the misuse or unauthorized imitation of individuals’, artists’ and celebrities’ identities, including their voice, likeness and “in the style of” prompts. Many stakeholders and industry groups, including artist guilds like SAG-AFTRA, have argued that current state right of publicity laws are not sufficiently protective in the age of AI, and that federal legislation is needed.

Indeed, earlier this year, the music industry expressed collective concern after the release of “Heart on My Sleeve,” a song created using AI-generated replicas of Drake’s and The Weeknd’s voices, but without the voluntary participation of the artists. The song quickly gained traction on streaming platforms and social media before it was ultimately removed from the platforms. “Heart on My Sleeve” is one of many recent examples, including David Guetta’s “Emin-AI-em,” a track the DJ and producer released on social media with the caveat that he had no intention of commercially exploiting the song. These creations raised questions regarding the protection of voice or vocal style as a distinct characteristic of an artist’s persona and what rights artists and others have to prevent the misappropriation of their identities in such manner.

Enter the Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2023 (the NO FAKES Act), a discussion draft bill introduced on October 12, 2023, by Senators Chris Coons (D-Del.), Marsha Blackburn (R-Tenn.), Amy Klobuchar (D.-Minn.) and Thom Tillis (R-N.C.), which aims to guard against the unauthorized digital reproduction of an individual’s voice, image and visual likeness.

The bill centers on the concept of a “digital replica,” which is defined as “a newly-created, computer-generated, electronic representation of the image, voice, or visual likeness of an individual that (A) is [nearly indistinguishable] from the actual image, voice, or visual likeness of that individual; and (B) is fixed in a sound recording or audiovisual work in which that individual did not actually perform or appear.”

In its current form, the NO FAKES Act would implement the following protections and grant new federal rights to individuals, including the following:

  • Everyone, whether a celebrity or famous artist or not—and in the case of an individual who is dead, an executor, heir, assign or devisee—will have the exclusive right to authorize the use of such individual’s image, voice or visual likeness in a digital replica.
  • The right is descendible and licensable in whole or in part by the individual to whom the right applies, survives postmortem and applies for 70 years following an individual’s death.
  • Any licensing of this property right requires that the applicable individual be represented by an attorney and that the license be governed by a collective bargaining agreement.
  • A civil action for violation of the NO FAKES Act may be brought by the rights holder; any person that owns or controls the exclusive right to license an individual’s image, voice or visual likeness; and, in the case of the recorded music industry, any person that has the right to the exclusive services of a recording artist.
  • A person will be liable in a civil action brought under the NO FAKES Act if that person produces a digital replica without the consent of the rights holder, or that person knowingly publishes, distributes, transmits or otherwise makes an unauthorized digital replica available to the public. One could still be held liable under the bill even when providing a public disclaimer regarding the unauthorized nature of the digital replica, or even if that person did not participate in the creation, development, distribution or dissemination of the digital replica, as neither of these actions is a defense under the proposed bill.
  • Violators shall be subject to a fine or actual damages, and, for willful violations, punitive damages may be awarded. The prevailing party (which, in the bill’s current form, could be a plaintiff or defendant), may receive reasonable attorneys’ fees.

Notably, the draft bill states that it “shall be considered to be a law pertaining to intellectual property for the purposes of section 230(e)(2) of the Communications Act of 1934,” meaning that Internet service providers would not be able to rely on Section 230 as a liability shield for liability under this act. ISPs would need to consider what protections might exist relating to notice and take-down under the Digital Millennium Copyright Act (which, at present, does not cover right of publicity claims).

The draft bill also seeks to take First Amendment considerations into account. For example, excluded from liability are uses of digital replicas in connection with news, public affairs and sports broadcasts, as well as documentary, historical and biographical works—generally tracking the types of current defenses to right of publicity claims. It also presently exempts uses “for purposes of comment, criticism, scholarship, satire, or parody.” However, how those exclusions might operate in practice without undermining the core purposes of the bill and providing sufficiently robust protections may merit further consideration.

In response to draft bill’s introduction, the Motion Picture Association of America (MPAA) sounded a cautious note, and stated its interest in working with the bill’s drafters “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.” Striking a more supportive tone, the Recording Industry Association of America (RIAA) applauded the drafters “for recognizing that unauthorized uses of one’s name, image, likeness, and voice are a clear threat to artists, songwriters, performers, authors, journalists, photographers, and the entire creative community.”

If the NO FAKES Act goes into effect—likely with amendments and changes from its current form—it would establish the first federal right of publicity in the United States and would help ensure an individual’s right to control and monetize their own digital persona. It is also worth noting that the bill would not preempt other laws that protect against the unauthorized use of one’s image, voice or visual image, leaving space for individuals to continue to use state right of publicity laws as safeguards to these rights. The discussion draft of the bill is only weeks old, and it can undergo many changes before coming up for vote and possible passage and signing by the president. Nonetheless, artists, musicians, actors and other stakeholders should watch closely and prepare themselves for the possible establishment of a federal right of publicity sometime in the near future.



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