Congress Mimics Existing Right Of Publicity Laws, Expands Upon Them With Proposed NO FAKES Act

• Published date: 12 February 2024
• Subject Matter: Intellectual Property, Technology, Licensing & Syndication, New Technology
• Law Firm: Katten Muchin Rosenman LLP
• Author: Ms Rachel J. Schaub

The draft bill, circulated with bipartisan Senate support, would codify right of publicity protections for artificial intelligence (AI) creations that replicate any individual, not just those with commercially valuable likenesses.

Generative AI seems like it can do almost anything. It can create a new Jimmy Stewart bedtime story. In a snake-meets-tail twist, it can even impersonate Scarlett Johansson promoting an AI-generation app. With its draftNurture Originals, Foster Art, and Keep Entertainment Safe Act (NO FAKES Act), a group of senators is attempting to set some guardrails to protect those whose likenesses are replicated by AI from harm.

The bill is aimed at digital replicas, which cover AI- or computer-generated imagery, voices, or visual likenesses. It only extends to replicas used in sound recordings or audiovisual works. Liability arises when creating a digital replica without consent or publishing, distributing, transmitting, or otherwise making such a replica publicly available. However, the bill requires knowledge that the replica is unauthorized if it is applied against anyone other than the creator or creators.

The right is descendible, meaning it can be exercised by an affected individual's executor, heir, assign or devisee if that individual is dead. A person is protected from unauthorized digital replicas for their lifetime and for 70 years after their death.

The bill also sets strict requirements on licensing digital replica rights. Contracts of adhesion do not count, so adding digital replica licenses to a standard click-through of terms and conditions will not suffice. For a license of such rights to be valid, the licensing individual must either be represented by counsel and have a written license or be covered by a collective bargaining agreement.

The bill contains standard exclusions from liability, including parody and use in a documentary, docudrama or biographical work. But those displaying or otherwise making available a digital replica cannot argue that they did not participate in its creation to avoid liability. As drafted, this language covers social media sites like YouTube, as well as music streamers like Spotify.

This bill is still a draft, though one with the force of bipartisan support behind it. The current legal landscape surrounding right of publicity and related protections has a void this bill could fill, but the NO FAKES Act is still quite narrow.

The draft bill's very existence suggests that existing law cannot...