The NO FAKES Act that would introduce a new digital replica right into American law was reintroduced into US Congress yesterday backed by the music industry as well as representatives from the movie and TV industries, and some tech companies too. That digital replica right would allow performers, and people more generally, to control the use of their voice and likeness in the context of AI.
“Americans from all walks of life are increasingly seeing AI being used to create deepfakes in ads, images, music and videos without their consent”, says Amy Klobuchar, one of the senators who introduced the legislation. “We need our laws to be as sophisticated as this quickly advancing technology. The bipartisan NO FAKES Act will establish rules of the road to protect people from having their voice and likeness replicated through AI without their permission”.
The fact this act has backers in the movie and TV industries, and from big tech, is crucial, and makes it much more likely that these proposals will become law. The big movie studios and TV producers want the actors they work with to be able to control their likenesses, but not in a way that restricts their own future use of AI technologies. And, of course, when it comes to other intellectual property concerns, the big AI companies are often in conflict with the entertainment business.
Speaking for the movie industry, Charles Rivkin, CEO of the Motion Picture Association, says that the NO FAKES Act “thoughtfully establishes federal protections” that balance the interests of performers and film-makers, adding, “we appreciate the inclusion of safeguards intended to prevent the chilling of constitutionally protected speech such as biopics, docudramas, parody and satire - this is necessary for any new law to be durable”.
YouTube is among the tech companies to back the act. “For nearly two decades, YouTube has been at the forefront of handling rights management at scale, and we understand the importance of collaborating with partners to tackle these issues proactively”, says the Google company’s VP of Public Policy Leslie Miller. “Now, we’re applying that expertise and dedication to partnership to ensure the responsible deployment of innovative AI tools”.
OpenAI and IBM were also among the tech companies issuing statements in support of the NO FAKES Act yesterday. However, some digital platforms and tech companies will seek to amend the act as it’s currently written as the proposals work their way through Congress, aiming to ensure the new rights don’t negatively impact on their own commercial ambitions.
Indicating that that’s the plan, Graham Davies, CEO of DIMA, which represents the streaming platforms, says “while progress has been made on certain areas of this important bill, further work is needed to achieve workable federal digital replica legislation”. He then adds, “DIMA has consistently expressed a willingness to support and contribute to this process, and we look forward to the opportunity to help strengthen and further improve the bill for all stakeholders”.
While the debate rumbles on about the copyright obligations of AI companies that use existing content to train their models, separate questions have been raised about how people can stop others from using AI to imitate their voice or likeness.
If, as the copyright industries insist, AI companies need permission from copyright owners before making use of any existing content, that provides some control over voice and likeness, but only if a person owns the copyright in any recording or video in which they appear. Actors and musicians often don’t own the copyright in that content.
Plus, of course, many AI companies argue they don’t need permission to use existing content when training models - in the US by claiming such use is ‘fair use’ under American copyright law. That dispute is currently at the heart of numerous lawsuits involving AI companies and copyright owners.
As a result, organisations representing performers have argued that additional rights are required to ensure actors and musicians can protect their voice and likeness.
It's thought that so called publicity or personality rights that already exist in many countries can help in that domain. However, in the US, these rights exist at the state level, they differ around the country and it remains uncertain quite how they would work in the context of AI.
The NO FAKES Act - originally proposed in 2023 and then introduced in the last session of Congress in 2024 - is an attempt to provide a US-wide right that is specifically designed with AI-generated digital replicas in mind. The introduction of such a right was supported by the US Copyright Office when it published a report on digital replicas as part of its work addressing the copyright concerns posed by AI.
Launching the report last year, US Register Of Copyrights Shira Perlmutter said, “It has become clear that the distribution of unauthorised digital replicas poses a serious threat not only in the entertainment and political arenas but also for private citizens. We believe there is an urgent need for effective nationwide protection against the harms that can be caused to reputations and livelihoods”.
The specific proposals in the NO FAKES Act have generally been welcomed by performers - including those in the music community - especially because they include safeguards around how the rights could be commercialised.
Although performers will likely work with business partners to commercialise their voice and likeness through the use of AI, concerns have been expressed that that could result in performers losing control of any new digital replica rights that are introduced.
However, under the NO FAKES Act, the new digital replica right will be unassignable while a person is still alive, meaning it can’t be transferred to another person or company.
And any licensing deals, where a performer allows a business partner to exploit the right, will be restricted to no more than ten years, and must be set out in a written agreement that includes a “reasonably specific description” of how a digital replica will be used.
Despite those restrictions on deal making, the record industry is also very supportive of the NO FAKES Act, with all three majors, and trade bodies RIAA and A2IM, issuing statements in support yesterday. Labels obviously recognise that there are opportunities to collaborate with their artists on AI projects that exploit voice and likeness, and clearer legal protections will help in capitalising on that opportunity.
Some of the tech companies, YouTube in particular, will also be hoping to capitalise on that opportunity in partnership with artists and labels, hence their support for digital replica rights being clearer in law.
However, those opportunities won’t be in the game plan of all AI and tech companies. Which is why some in that domain will lobby for amendments to be made to the act as it is currently written, in a bid to ensure the new rights don’t negatively impact on their objectives and ambitions.