Source: Wikipedia

On the same day that a group of senators introduced a bill—the “NO FAKES Act”—to create a right for individuals to control digital replicas of their voice and likeness, the U.S. Copyright Office issued a report addressing digital replicas created by artificial intelligence (AI). This is part one of the agency’s broader report on issues related to the exploding use of generative AI platforms. Among the Copyright Office’s recommendations is the need for passage of a federal law that would create a new form of property right for a person’s digital replica to disincentivize the creation of realistic but false depictions of individuals. However, the agency advised against making that right assignable and suggested that the duration of licenses should not exceed one decade.

The Copyright Office’s first report on generative AI’s legal issues follows nearly a year after the agency published a notice of inquiry in the Federal Register seeking public input on the intersection of U.S. copyright law and AI systems. In response, the Copyright Office received about 1,000 comments, 90% of which were filed by individuals and most of which advocated for the passage of a new federal law establishing remedies for the misappropriation of an individual’s likeness via digital replicas.

Commercial Nature of Unauthorized Replica Should Not Be Infringement Factor

Acknowledging that many states recognize common law rights of privacy and publicity that provide a cause of action against false digital representations of individuals, the Copyright Office noted that the existing legal framework is uneven, often protecting only certain classes of individuals or using different carveouts for speech protected under the First Amendment. Further, existing laws at both the state and federal level are too narrow to prevent unauthorized duplications of personas as digital replicas, the Office’s report opined.

The Copyright Office received extensive feedback from public commenters on the contours of protections and remedies for a new federal right to digital replicas. Based on these comments, the agency recommended that such a right should cover all individuals. Further, the subject matter of that right should be defined so as to cover all digital likenesses, including audio, video or images, that have been “digitally created or manipulated to realistically but falsely depict an individual.”

By contrast, the Office’s report noted that it received relatively little feedback on the kinds of activity that should qualify as infringing conduct. Noting that the harms created by inauthentic digital replicas are not always economic in nature, the agency advised that non-commercial publications of deepfakes should be an actionable infringing act. The Office also recommended the adoption of an actual knowledge standard when assessing direct liability, which the bill introduced yesterday includes. While some commenters advocated for a stricter intent to deceive standard, the Office stressed the difficulty of assessing subjective standards and added that liability should attach in certain situations where the creator of a digital replica has no intent to deceive, such as when replicas are used to harass an individual.

Short Duration of Digital Replica Licenses Would Counteract Potential Contract Abuses

Secondary liability should be an important component of any federal legislation passed to prevent unauthorized digital replicas, the Office’s report concludes, as those replicas are distributed through online intermediaries. The Office believes excluding the safe harbor under Section 230 of the Communications Decency Act in the digital replica context is necessary as many disseminators of digital replicas could be anonymous or unreachable. The agency’s report concluded that a notice and takedown system akin to Section 512 of the Digital Millennium Copyright Act (DMCA) could be effective, but cautioned that such a framework should not import the DMCA’s “red flag” knowledge standard due to issues with that standard in the copyright context.

Although the Copyright Office recommended that individuals be able to license their digital replica rights, the potential for abuse in uneven contracting situations in the context of employment or talent contracts led the agency to recommend a limited licensing duration of five to ten years. Yesterday’s bill also addresses this, with limits and restrictions on licensing. The Office also advocated for an outright ban on assignments of digital replica rights in large part because the right, while it could be treated as a form of property, is “most appropriately viewed as a hybrid of privacy interests and a form of property,” and privacy law recognizes waiver and licenses but not assignment. The NO FAKES Act would ban assignments as well.

The Copyright Office’s report did not recommend that a federal right to digital replicas should cover artistic style, which has been a subject of hot debate during Congressional hearings on generative AI issues. While many public comments submitted to the Office sought such protections, the agency’s report found that several sources of protection against unfair copying exist under the Copyright Act, the Lanham Act’s provisions against passing off and interpretations of the common law right of publicity developing in U.S. courts. However, the Office indicated that future parts of the agency’s generative AI report would address situations where creative works are used to train AI systems to output imitations.

Following the publication of the digital replica report, the U.S. Patent and Trademark Office issued a press release welcoming the Copyright Office’s views on relevant legal and policy issues. The release also noted that, under President Biden’s executive order on AI, the Patent Office now has 180 days to submit copyright recommendations related to digital replicas to the White House.