On July 31, 2024, nearly ten months after introducing a discussion draft, a bipartisan group of Senators officially introduced the Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2024 (NO FAKES Act). The 2024 act is co-sponsored by Senators Chris Coons (D-Del.), Marsha Blackburn (R-Tenn.), Amy Klobuchar (D.-Minn.) and Thom Tillis (R-N.C.), and tracks the key principles of the 2023 discussion draft (which we wrote about here), with the goal of providing individuals an enforceable (and licensable) property right in one’s digital identity, including voice, image and visual likeness.
Asserting control against unlicensed deepfakes has been an increasing concern in the entertainment industry, with artists, musicians, actors and licensors expressing concerns that the existing laws are insufficient in the age of artificial intelligence (AI). The new bill attempts to navigate the intricacies of establishing a federal right of publicity, including as to licensing this personal right, enforcing it against violators, and providing a takedown regime and safe harbor.
The NO FAKES Act of 2024 focuses on the concept of a “digital replica,” which it defines as,
“a newly-created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that (A) is embodied in a sound recording, image, audiovisual work, including an audiovisual work that does not have any accompanying sounds, or transmission (i) in which the actual individual did not actually perform or appear; or (ii) that is a version of a sound recording, image, or audiovisual work in which the actual individual did perform or appear, in which the fundamental character of the performance or appearance has been materially altered; and (B) does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.”
An overview of key portions of the Act are the following:
Nature of the Right
- Any living person—and in the case of the deceased, an executor, heir, assign, licensee or devisee—will have the right to authorize the use of such individual’s voice or visual likeness in a digital replica.
- The right is not assignable during an individual’s lifetime, but it is licensable and does not expire upon an individual’s death, even if the right is not commercially exploited by the individual during their lifetime (or if that individual dies before the bill is enacted).
- The posthumous right will be exclusive for ten years after the individual’s death, and could be extended for additional five-year renewal periods, provided the right holder can demonstrate “active and authorized use of the voice or visual likeness of the individual during the 2-year period preceding the end of the [applicable period].” The right will continue to survive until the earlier of the end of the applicable period, or 70 years after the individual’s death.
- The bill contains obligations for estates, including new compliance obligations to file a notice with the Register of Copyrights. Registration must include the name of the deceased person, a statement under penalty of perjury that the right holder was actively and publicly using the individuals’ voice or visual likeness, contact information, and satisfy any other conditions the Register of Copyrights requires.
Licensing
- Right holders may still license this property right, in whole or in part, provided that any license does not exceed ten years (although utilization of authorized digital replicas post-expiration or termination of the license is permissible). With this change to the bill from the discussion draft, there seems to be a clear effort to ensure that this right is not transferred for too long during the life of an individual so as to remove from complete control of the individual implicated. There are additional requirements if the license involves a minor.
- Any licensing agreement must also include a “reasonably specific description of the intended uses of the applicable digital replica.” In our view, this provision raises questions about how specific and/or broad the description could be and still be upheld by the court. For instance, is a description that states “all possible uses in connection with sound recordings” specific enough?
- The bill introduces the concept of transferring or licensing the right post-mortem, provided the agreement is in writing and signed by the applicable right holder (or an authorized representative). The bill also contains copyright registration requirements for post-mortem renewal.
Civil Actions
- Any right holder—whether the original right holder, licensee, parent or guardian of a minor—can bring a civil action for violations of the Act.
- A person can be liable for violation of the act if such person either produces a digital replica without the required consent, or publishes, reproduces, displays, distributes, transmits or otherwise makes publicly available a digital replica without the consent of the applicable right holder.
- The current bill bolsters the knowledge requirement, noting that anyone engaging in unlawful activities must either have actual knowledge or willfully avoid having knowledge, that the digital replica at issue was not authorized.
- Violators could face fines or be required to pay actual damages plus any profits derived from the unauthorized use. Willful violators could also be subject to punitive damages.
- Prevailing plaintiffs can obtain reasonable attorneys’ fees, while prevailing defendants can do so only the court finds the action was not brought in good faith.
- Any liability under the NO FAKES Act only applies to conduct that occurred, or any licenses or contracts that were executed after the bill is enacted.
Notice & Take-down Procedure: As the Digital Millennium Copyright Act does not apply to right of publicity claims, discussions about the discussion draft highlighted the hurdles internet service providers (ISPs) would have to overcome in order to avoid liability under the NO FAKES Act. The updated official bill addresses these drawbacks by creating the following safe harbors for ISPs and products and services capable of producing digital replicas:
- In order for any person to be found secondarily liable for violation of the NO FAKES Act, their product or service must be primarily designed to create deepfakes, have limited “commercially significant purpose” other than to create deepfakes, and must be promoted by that person with their knowledge for use in producing deep fakes.
- Merely referring or linking an online user to an unauthorized digital replica is not unlawful, provided the ISP removes or disables access to the unauthorized material after receiving notice. It is worth noting that there are several conditions to satisfy notice, and penalties for deceptive notice could include fines or actual damages.
- Hosting user-uploaded material similarly is not a violation of the current bill, to the extent that after receiving notice, the ISP removes or disables the unauthorized material “as soon as is technically and practically feasible for that online service” and “takes reasonable steps to promptly notify the user who uploaded the material” that such material has been removed or disabled.
- An online service could also restore material that was previously removed or disabled without liability, but the user who uploaded such material must file a lawsuit against the notice sender no later than 14 days after such user receives notice from the online service that the material was removed or disabled.
First Amendment Exclusions: We continue to see statutory exclusions for First Amendment-protected uses in the current bill, with the Act exempting liability for use of digital replicas in connection with bona fide news, public affairs, and sports broadcast or account, “provided the digital replica is the subject of, or is materially relevant to the subject of such broadcast or account.” It also exempts documentary, historical or biographical works that include “some degree of fictionalization,” provided such use toes the line of additional parameters related to this exclusion. Additionally, it exempts from liability uses “in the public interest in bona fide commentary, criticism, scholarship, satire, or parody,” and for “fleeting or negligible” use of a digital replica.
Section 230 Implications: Similar to the discussion draft, the current bill notes that the NO FAKES Act is “a law pertaining to intellectual property for the purposes of section 230(e)(2) of the Communications Act of 1934,” and thus ISPs will not be able to rely on Section 230 as a shield from liability under the NO FAKES Act.
Preemption: One of the biggest procedural questions bound up with the creation of a new federal publicity right pertains to how it interacts with the existing patchwork of state law publicity rights. The current bill specifically notes that it will preempt any cause of action under state law aimed at the protection of an individual’s voice and visual likeness rights in an expressive work. However, the Act will not preempt any state law or common law that is in existence as of January 2, 2025, safeguarding current state laws that already address these rights, including Tennessee’s Ensuring Likeness Voice and Image Security (ELVIS) Act.
Finally, it is worth noting that the Act was introduced the same day that the U.S. Copyright Office issued Part 1 of its AI Report, which explicitly recommends a new federal digital replica law like the NO FAKES Act. The Office stated in its Report that based, on the input and analysis it has conducted to date, “we have concluded that a new law is needed. The speed, precision, and scale of AI-created digital replicas calls for prompt federal action. Without a robust nationwide remedy, their unauthorized publication and distribution threaten substantial harm not only in the entertainment and political arenas, but also for private individuals.”
At bottom, with the introduction of the official bill, federal protection for a right of publicity moves closer to becoming reality, but will still need to move forward through the legislative process, including full votes in the Senate and House. Stakeholders (including estates) should continue to watch closely how the Act evolves and begin considering how passage might impact their rights and operations.