Boom in State Digital Replica Laws Fuels Need for Federal Publicity Right

Advances in artificial intelligence (AI) have made it possible to produce films, music, video games, and more using "digital replicas" of a performer's appearance, voice, and movements rather than the actual person.

Pop group ABBA's recent "Voyage" tour utilized virtual avatars (nicknamed "ABBA-tars") to perform songs virtually. Rogue One: A Star Wars Story famously included scenes created with a composite of the late Peter Cushing with a motion capture actor's bodywork. In the Death Stranding video game, actors Norman Reedus, Léa Seydoux, Mads Mikkelsen, and Margaret Qualley performed with motion capture to create photo-realistic characters modeled after their likenesses.

State governments are creating conflicting laws on digital replicas, which muddle legal jurisdictions, use vague language that creates marketplace uncertainty, and undermine free speech. Instead of adding to this patchwork of state legislation, Congress should create a federal law establishing a national "right of publicity" (i.e. intellectual property rights that protects individuals from the unauthorized use of their name, image, and likeness) for all Americans.

Digital replicas are imitations of an individual's voice or likeness created using digital technology, such as AI. Studios can scan performers to use their image as a background actor in a movie or video game. For example, the Apple TV+ show Ted Lasso used digital doubles to fill stadiums with fans. But digital replica legislation would not just cover famous performers having their likenesses replicated for lawful commercial purposes, it would also cover deepfakes-realistic-looking images and videos produced with AI that portray someone doing or saying something that never actually happened-of celebrities and misuse of the images of ordinary citizens.

Mirroring 2023's SAG-AFTRA (the world's largest union for performers and broadcasters) strike -where performers advocated for stronger AI protections-video game voice actors and motion capture performers have been on strike for over a month, fearing their roles will be replaced by AI-generated replicas without consent or compensation. This strike comes at a time when the entertainment industry is debating how to handle many AI issues.

For example, Meta is working on licensing celebrity voices for upcoming products, following OpenAI's controversy over using a voice that some claim resembled Scarlett Johansson's. Microsoft recently published a white paper on the issue of deepfakes, arguing for Congress to pass a comprehensive deepfake fraud statute. Meanwhile, the music industry is facing challenges with AI-generated songs sounding similar to existing artists, such as recent cases featuring rappers Drake and The Weeknd.

In response to these controversies, multiple states have passed laws governing digital replicas and deepfakes. On September 17, 2024, California Governor Gavin Newsom signed two such bills into law. AB 1836 requires consent from the owner of the personality's rights to use AI to replicate a dead actor or performer's likeness. This law will expand the scope of the state's right of publicity, including the use of digital replicas. AB 2602 tightens the consent requirements for using AI to replicate the likeness of performers who are still alive.

Earlier, in June 2024, the New York assembly passed the Digital Replica Contracts Act, expanding the state's right of publicity law to include digital replicas, but only for deceased performers living in New York when they died.

Finally, Tennessee's Ensuring Likeness Voice and Image Security Act, or ELVIS Act, enacted in July 2024, updates the state's preexisting personal rights law to now include AI-generated "models and services that enable human impersonation and allow users to make unauthorized fake works in the image and voice of others." This legislation however raises questions over jurisdiction and is likely to face fights in court over out-of-state defendants subject to liability in Tennessee.

To replace the growing patchwork of state digital replica legislation, the United States needs a federal right of publicity and better intellectual property (IP) protections for performers that still allow for innovation in entertainment.

Senators Chris Coons (D-DE) and Marsha Blackburn (R-TN) introduced an updated version of the Nurture Originals, Foster Art, and Keep Entertainment Safe Act (NO FAKES Act) in July 2024. The bill calls for a federal property right to approve the use of a voice, appearance, or likeness, with legal liability for those who create or distribute an unauthorized replica.

It would preempt future state laws addressing digital replicas, though it would not preempt existing laws, such as those passed in California, New York, and Tennessee, leaving part of the patchwork in place. The bill also includes First Amendment exemptions for satire, parody, and documentary use-provisions that are missing from some state laws, such as California's. Supported by the Motion Picture Association, the Recording Industry Association of America, and SAG-AFTRA, the law would apply not only to actors and celebrities but to all Americans.

This bill is a key step in establishing a federal right of publicity. It would prohibit the complete transfer of this right to third parties-such as agents, film studios, or advertising agencies-while the performer is alive, ensuring performers retain control over their likeness and are protected from coercion. The bill also includes added protections for minors, such as a limit on how long their rights can be licensed before they read adulthood. Empowering child performers is especially crucial given their increasing involvement in the entertainment industry.

NO FAKES is not without its opponents. Some groups with a history of opposing IP rights argue that the bill raises First Amendment concerns, as bad actors could attempt to take down speech they dislike (a.k.a. a "heckler's veto"). However, the bill does have exemptions for constitutionally protected digital replicas used for satire, documentary purposes, or broadcasting. While it is important to minimize abuse, strong IP protections not only protect individuals but also promote innovation by fostering a competitive environment where creators can confidently benefit from their work.

Congress should establish a federal right of publicity that gives individuals the right to control the commercial use of their identity while preserving fair use and other speech protected by the First Amendment. To accomplish this, Congress should pass an amended version of the NO FAKES Act that preempts all existing and future state digital likeness laws. This would ensure consistent IP protections for all Americans-including performers-support innovation in entertainment and prevent a patchwork of state digital replica laws.

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