Hollywood’s AI Concerns About “Digital Replicas” Are Now Being Debated by Congress (Guest Column)

Even as the issue of protecting performers from the misuse of artificial intelligence continues to vex the labor negotiations between SAG-AFTRA and the Alliance of Motion Picture and Television Producers, a second front has just opened.

On Oct. 12, four U.S. Senators presented a bipartisan “discussion draft” of legislation intended to protect actors, singers and others from having AI programs generate their likenesses and voices without their informed written consent. The “Nurture Originals, Foster Art and Keep Entertainment Safe” (NO FAKES) Act would allow people, companies and platforms to be sued for producing or hosting so-called “digital replicas.”

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The NO FAKES Act is being sponsored by Senators Marsha Blackburn (R-TN), Chris Coons (D-DE), Amy Klobuchar (D-MN) and Thom Tillis (R-NC). It represents the federal government’s first attempt to prevent the misappropriation of voice and likeness performances in audiovisual works and sound recordings. The rights created under this prospective legislation would apply to living persons and deceased artists (through their executors, heirs, assigns or devisees). For dead performers, the right would continue to exist for 70 years after their death — a period identical to the duration of the statutory postmortem rights of publicity currently recognized in California, Hawaii and South Dakota.

The rationale underlying this prospective legislation was succinctly summarized by SAG-AFTRA national executive director Duncan Crabtree-Ireland: “The explosion in popularity and capability of generative artificial intelligence has flooded the internet with AI-created songs, videos and voice recordings which exploit the voices and likenesses of our members without consent or compensation. For our members, their voice and likeness is their livelihood. They spend a lifetime improving their talent and building their value. It is outrageous to think someone can undermine that value with a few prompts and clicks on a keyboard.”

Liability under the NO FAKES Act arises from either the the “production of a digital replica without consent” or “publication, distribution or transmission of, or otherwise making available to the public, an unauthorized digital replica, if the person engaging in that activity has knowledge that the digital replica was not authorized.” The Act defines the term “digital replica” as “a newly-created, computer-generated, electronic representation of the image, voice, or visual likeness of an individual” that appears “nearly indistinguishable” from a performer’s actual characteristics and was embodied in a work in which that person never actually performed or appeared.

The NO FAKES Act allows for actors and singers to license their digital replica rights to others but only if those individuals are “represented by counsel in the transaction and the assignment agreement was in writing” — unless those licensing rights are already the subject of a collective bargaining agreement such as that which is now the subject of SAG-AFTRA’s ongoing negotiations with the AMPTP.

Violations of these digital replication rights are actionable for up to three years and are subject to either statutory damages of $5,000 per violation or actual damages suffered by the injured party.  Punitive damages and attorneys’ fees are also potentially recoverable by the prevailing party.

Interestingly, the four senators’ announcement of the NO FAKES Act was followed by a statement from the Motion Picture Association that neither opposed nor criticized this proposed legislation; rather, the MPA pledged to work “to ensure any eventual legislation establishes adequate protections against harmful uses of digital replicas without infringing on the First Amendment rights and creative freedoms upon which our industry depends.”

Those appropriate concerns are already largely addressed through the act’s explicit exclusion from potential liability of all “news, public affairs or sports” programs; “documentary, docudrama or historical or biographical” works; “comment, criticism, scholarship, satire or parody” usages; advertisements or commercial announcements for any of the above three categories; and “de minimis or incidental” usages.

The rights conferred under the NO FAKES Act are both “a property right” and, intriguingly, also to be considered “a law pertaining to intellectual property” under Section 230 of the Communications Decency Act. The latter provision effectively means that websites, social media outlets and other internet platforms will need to develop mechanisms for policing the dissemination of unauthorized digital replicas or risk losing the immunity from liability they have for hosting user-generated content. One hopes that technology companies will not oppose this legislation and will instead do what is necessary to create effective mechanisms for ensuring that unauthorized digital replicas are promptly removed from their platforms.

Douglas E. Mirell is a partner at the Los Angeles law firm of Greenberg Glusker Fields Claman & Machtinger. His practice focuses on defamation, invasion of privacy, publicity rights, copyright, trademark and First Amendment litigation. Mr. Mirell has consulted with SAG-AFTRA on “deepfake” and other artificial intelligence issues affecting the entertainment community.

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