No More Faking It
On July 31 of this year, Senators Chris Coons, Marsha Blackburn, Amy Klobuchar, and Thom Tillis introduced a bill representing Congress’s first swing at generative AI. The “Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2024” (NO FAKES Act of 2024) is an attempt to establish guard rails regarding protecting voice and visual likeness from unfair use with generative AI.
The proposed legislation establishes a “property right” in the voice and visual likeness of an individual in a digital replica that is licensable by the rights holder for up to 10 years (or 5 years for a minor under 18) but is not assignable during the life of the individual. Following the death of the individual, the right is owned by the executor, heirs, assigns, licensees, or devisees of the individual for at least 10 years which may be renewed in 5-year increments as long as the rights holder “demonstrates active and authorized public use of the voice or visual likeness of the individual during the 2-year period preceding the expiration.” The right expires at the earliest of date of the 5/10 year expiration or 70 years after the death of the individual. The rights also preempt any cause of action under State law for the protection of an individual’s voice or likeness rights in connection with a digital replica.
There are certain exclusions for news, sports broadcasts, satire, parody, or “fleeting or negligible” uses. To incur liability, the person must have “actual knowledge” or must be willfully avoiding having such knowledge. The proposed legislation would also establish certain safe harbors for online services that refer or link a user to an unauthorized digital replica if upon notification “the online service removes or disables access to the material that is claimed to be an unauthorized digital replica as soon as is technically and practically feasible for that online service.” The online services must also designate an agent who receive the take down notices. The bill would establish a penalty for any false or deceptive take down notices.
The bill includes a three-year statute of limitations from the date when violation was discovered or would have been discovered with due diligence. Remedies are the greater of $5,000 per work by an individual embodying the unauthorized digital replica; $5,000 per violation by an online service; $25,000 per violation by an entity other than an online service; or any actual damages suffered by the injured party plus any profits from the unauthorized use.
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