Senators Chris Coons (D-DE), Marsha Blackburn (R-TN), Amy Klobuchar (D-MN), and Thom Tillis (R-NC)  today officially introduced the “Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2024” (NO FAKES Act). A discussion draft of the bill was first introduced in October 2023 with the stated goal of “protect[ing] the voice and visual likenesses of individuals from unfair use through generative artificial intelligence (GAI).”

The announcement also follows an April 2024 hearing of the U.S. Senate Judiciary Committee’s Subcommittee on Intellectual Property in which six witnesses testified about the need to strike the right balance in drafting the bill. Today’s press release included supporting statements from organizations including OpenAI, The Walt Disney Company, Warner Music Group, the Authors Guild, the Recording Industry Association of America (RIAA), the Motion Picture Association (MPA), Universal Music Group and SAG-AFTRA.The Human Artistry Campaign also voiced its support, with the Senior Advisor, Dr. Moiya McTier, calling it “strong legislation” that will put “every American in control of their own voices and faces against a new onslaught of highly realistic voice clones and deepfakes.”

The proposed legislation would establish a federal property right for every individual in their own voice and likeness. There are exceptions for news, broadcast, advertising/ marketing and documentary use, public criticism or commentary and “fleeting or negligible” use, among others. An “actual knowledge” standard would be required to prove liability. The right is not assignable during the life of the right holder, but is licensable for up to 10 years (or 5 years for minors under 18), and expires 70 years after the death of the individual. There are provisions for post-mortem transfer of the right and renewal procedures as well. It would also preempt all existing state laws.

The bill would establish a notice and takedown process for removing unauthorized replicas and would not hold platforms liable for linking or referring users to unauthorized content, “as long as the online service removes or disables access to the unauthorized digital replica as soon as technically and practically feasible after receiving notice of a claimed violation.” Online service providers must also designate an agent as the contact point for reporting violations.

It also calls for a three-year statute of limitations running from the date the plaintiff discovered “or with due diligence should have discovered” the violation. Remedies are $5,000 per work embodying the unauthorized digital replica or actual damages for individuals who engage in prohibited activity; $5,000 per violation or actual damages for online services; the greater of $25,000 per work embodying the unauthorized digital replica or actual damages for entities that are not online services. Injunctive relief and punitive damages for willful violations are available.

According to an article by Complete Music Update (CMU), artists will especially welcome the bill’s restrictions on assignment and licensing, as they are “keen to ensure that companies in the music industry don’t pressure artists into transferring control of their likeness and voice to business partners on a long-term basis.”

During the Senate hearing in April, an artist named Tahliah Debrett Barnett (“FKA twigs”), explained that she is using AI to enhance her career but she is also being exploited by it.

On the one hand, she said she has created an AI version of herself that she can use to speak in multiple languages in her own voice, which helps her to reach and connect with fans more effectively, adding that AI also allows artists to “spend more time making art.” However, she has also had the experience of finding songs seemingly made by her online that she didn’t actually create or perform. “It makes me feel vulnerable because as an artist I’m very precise…. If legislation isn’t put in place to protect artists, not only will we let artists down who really care about what we do, but it also would mean that fans wouldn’t be able to trust people they’ve spent so many years investing in.”

Separately, the U.S. Copyright Office today released Part 1 of its Report on Copyright and Artificial Intelligence, focusing on digital replicas, and recommended “that Congress enact a new federal law that protects all individuals from the knowing distribution of unauthorized digital replicas.” IPWatchdog will have more on that report soon.

Image Source: Deposit Photos
Author: NatalyLad
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