Proposal Will Create Federal Image and Likeness Rights

Recently lawmakers have proposed new Federal Image and Likeness Rights to combat against the unauthorized use of voice and image clones by creating new federal image and likeness rights to protect the voice and visual likenesses of individuals from the unauthorized use of artificial intelligence technology.

In the past few years, AI technology has advanced, spread and become simplified from highly technical coding to user-friendly apps and websites, such as ChatGBT.  Capitalizing on the AI boom, private companies are creating a host of AI accessible tools for using AI to create fabricated images, video, text and audio (GAI). When a creator makes an AI-generated impersonation of a human, it’s called a “deepfake.” When an AI creator makes a sexually explicity AI-impersonation, its referred to as Deepfake pornography and is often described as image-based sexual abuse. Lawmakers are trying to enhance the rights to individual citizens and combat against these recent issues.

The Digital Age and Your Federal Image and Likeness Rights

Generative AI systems are becoming increasingly sophisticated making it more difficult to differentiate between real images and artificially generated images. As a result, lawmakers have recently introduced a proposed legislation to create a federal property right for everyone’s right in their voice and likeness.  Three bills, include the NO FACTS Act, the ELVIS Act and No AI FRAUD Act.

The NO FAKES Act, stands for Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2024, was introduced by Senators Chris Coons (D-DE), Marsha Blackburn (R-TN), Amy Klobuchar (D-MN) and Thom Tillis (R-NC). The No AI FRAUD Act, which stands for No Artificial Intelligence Fake Replicas and Unauthorized Duplications Act was introduced as a bipartisan House bill by Rep. María Elvira Salazar (R-FL), alongside Reps. Madeleine Dean (D-PA), Nathaniel Moran (R-TX), Joe Morelle (D-NY), and Rob Wittman (R-VA) to target “abusive AI deepfakes, voice clones, and exploitive digital human impersonations.” Similiarly, the ELVIS Act, which stands for Ensuring Likeness Voice and Image Security (ELVIS) Act of 2024, is a State Law which expands artificial intelligence protections for the name, image, likeness and voice (NIL+V) of artists and explores additional protections and rights for artists.

The ELVIS Act – State Protection

Tennessee was the first state to enact voice, image and likeness protections and provides both civil and criminal penalties.  The ELVIS Act was vitally important to Tennesee where Tennessee’s music industry supports more than 60,000 jobs across the state and contributes to $5.8 billion to the U.S.’s GDP. The ELVIS Act, named after Elvis Presley, focuses on protecting the rights of deceased performers. Of note, this is not the first time Tennessee has taken steps to protect artists’ publicity rights. In 1984, Tennessee enacted the Personal Rights Protection Act (PPRA) to protect the post-mortem NIL of Tennessee’s most famous singer and songwriter, Elvis Presley. Tennesseeunderstood the importance of preserving the musical talent and ensuring that any commercialization of those rights be exclusively reserved to a musician’s heirs. The PPRA prohibited using a person’s NIL for commercial purposes, and created civil and criminal actions for the unauthorized use of those rights.

With the advancement of AI, Tennessee has revisited their earlier NIL laws and accounted for the use of AI.  Basically, the ELVIS Act prohibits someone from using AI to mimic a person’s voice without permission and provides a property right in the use of a person’s NIL+V (Name Image Likeness and Voice) including in use in a song, documentary, film, book and social media posts (e.g., Tik Tok, Instagram), etc. The ELVIS act went into effect in Tennessee on July 1, 2024.  Under the ELVIS Act, music labels holding contracts with artists may pursue legal action against infringing parties.

Key aspects of the ELVIS Act include:

• Currently Limited to Tennessee.
• In addition to Name, Image and Likeness, allows for protection of a person’s voice. (NIL +V)
• Definition of Digital Replica: A computer-generated electronic performance that is so realistic a reasonable observer would believe it’s the actual individual performing.
• Makes it unlawful to exploit an individual’s identity for commercial gain without the necessary authorization, including endorsements, advertisements, and media misrepresentations.
• Also preserves privacy rights.
• Protection for Deceased Performers: Extends rights to those who were domiciled in the state at the time of death and regularly engaged in performing arts.
• Scope: Covers various aspects of a performer’s identity, including name, voice, signature, photograph, image, likeness, and digital replica.

The NO FAKES Act – Senate Bill S. 4875

The Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act is a proposed federal legislation that aims to create standardized rules for Federal Image and Likeness Rights. The act defines a digital replica as “a newly-created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual…” It grants individuals the exclusive right to authorize the use of their voice or visual likeness in a digital replicas.  Under the proposed legislation, an individual can not assign their digital replication rights during their lifetime. This restriction on assignability is likely based on the need to protect artists and creators, often with limited leverage, from being pressured into transferring their digital replica rights, thereby permanently losing control over how their voice and image are used.

However, they may license their rights but the license duration must not exceed 10 years. This would not apply to licenses covered by a collective bargaining agreement that already provides protection with respect to digital replicas.  The proposed legislation provide for post-mortem rights, up to 70 years. The initial 10 year term may be extended for additional 5 year periods if the right holder demonstrates ongoing commercial use within the 2 years prior to the end of the then-current period and complies with the registration requirements to be established by the Copyright Office.

The proposed legislation also provides for a safe harbor modeled after the DMCA.  Under the Safe Harbor, the NO FAKES act allows online platforms to avoid liability if they remove unauthorized digital replicas as soon as technically and practically feasible upon receiving a takedown notice.  Additionally, the NO FAKES Act has a first amendment limitation which allows use if the digital replica is used in bona fide news, public affairs, sports broadcasts, documentaries, or historical/biographical portrayals, commentary, criticism, scholarship, satire, parody, etc.

Notable features include:

• Federal Right of Publicity: Would establish the first federal right of publicity, complementing existing state laws.
• Extended Protection: Rights would extend 70 years beyond an individual’s death.
• Broad Applicability: No requirement for the victim’s identity to have commercial value.
• Expanded Liability: Allows action against those who share infringing content and websites publishing unauthorized AI-generated content.

The No AI FRAUD Act – H.R. 6943

The House version of the AI NIL bill is aimed at providing all individuals with Federal Image and Likeness Rights to control the use of their likeness and voice. These rights would be freely transferable and descendible property rights that do not expire upon the death of the individual.

The NO FRAUD Act would prohibit creating and making available to the public a “personalized cloning service”, and prohibit the creation, publishing, or otherwise making available to the public any AI-generated replicas of an individual’s voice or likeness without the individual’s consent. The Act would also prohibit the facilitating of any of the aforementioned activities.

Remedies of statutory or actual damages are provided in the event of a violation. The bill would impose up to $50k for creating a cloning service, per violation, plus profits generated from the illegal use of an individual’s likeness. In addition, unauthorized AI creations copying an individual’s voice or likeness would be liable for $5k per violation, plus profits generated from the illegal use of the individual’s likeness.

Under the No AI Fraud Act, AI replication would only be permitted if an individual is 18 or older and represented by counsel in an agreement or represented by a collective bargaining agreement.

The bill also addresses First Amendment concerns by including a provision that alleged harm should be weighed against whether the AI-generated replica is transformative or protected commentary on a matter of public concern.

Notable features include:

• Federal Right of Publicity: Would establish a federal right of publicity for all individuals to use their voice or likeness in a digital replica.
• Preempts State Law: Preempts any cause of actuion under state law with noteable exceptions, like sexual depictions, election ads.
• Digital Replica: A newly-created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual.
• Transferrability of Rights: Rights may be licensed (up to 10 years) but not assigned during lifetime. Minors up to 5 years until 18.
• Statutory Damages:  between $5k and $25k per work plus actual damages.
• Extended Protection: Rights extend up to 10 years post mortem, renewable to 70 with active and authorized public use.
• Registration: Must register post-mortem with Copyright Office.
• Broad Applicability: No requirement for the victim’s identity to have commercial value.
• Statute of Limitations: Claims must be brought within 3 years from discovery.
•  Safe Harbor:  Allows for safe harbor to service provider like DMCA.
• First Amendment: Allows for carve-out from liablity for “bona fide news, public affairs, or sports broadcast or account,” as well as documentary and historical uses, uses that are consistent with the public interest in commentary, criticism, satire or parody, and uses that are considered “fleeting or negligible.

Implications for Digital Rights

These legislative efforts highlight the growing concern over digital rights in an AI-driven world. Some key points to consider:

• AI and Deepfakes: The rise of AI-generated content poses new challenges in protecting Image and Likeness Rights.
• State vs. Federal Laws: Currently, right of publicity laws vary by state. The proposed federal legislation proposes to unify this approach and create a floor of intellectual propety protection over an individual’s Name, Image, Likeness and Voice.
• Balancing Act: Any legislation will need to balance the protection of individual rights vs. First Amendment concerns.
• Posthumous Rights: As a result, most of these will allow for a federal post-mortem right which will extend protection after individual’s death.

Conclusion

As technology continues to evolve, so must our legal framework. The ELVIS, NO (AI) FRAUD and NO FAKES Act represent important steps in addressing the complex issues surrounding digital rights and provide for a Federal Image and Likeness Rights. Whether you’re a content creator, performer, or simply concerned about your digital presence, staying informed about these developments is crucial in protecting your rights in the digital age. Remember, while these acts provide new protections, if you have any questions about how these laws will apply in your situation, you should contact us for help regarding your specific needs with digital image and likeness rights.