The Evolving Landscape of Digital Replica Legislation: A Comparative Analysis
In recent years, both state and federal legislative bodies across the United States have been actively addressing the rapidly advancing frontier of digital replicas, commonly referred to as deepfakes, which are created using artificial intelligence. These legislative efforts, largely aimed at safeguarding the name, image, and likeness (NIL) rights of entertainers and public figures, underscore the complexity of intellectual property in the digital age.
Federal Initiatives: The NO FAKES Acts
Two notable iterations of the federal NO FAKES Act, proposed in 2023 and 2024, highlight efforts to establish and refine property rights associated with digital replicas. The 2023 bill, referred to as the "Nurture Originals, Foster Art, and Keep Entertainment Safe" (NO FAKES) Act, was introduced in October 2023, gaining traction from influential organisations like the Recording Industry Association of America (RIAA) and the Screen Actors Guild‐American Federation of Television and Radio Artists (SAG-AFTRA).
This bill defined a "digital replica" as a nearly indistinguishable electronic representation of a person's image, voice, or likeness embodied in a medium where the individual did not actually perform. It sought to create a property right for digital replicas, enduring for 70 years posthumously, and proposed financial remedies for violations. Importantly, the 2023 bill did not preempt state laws, allowing existing state provisions to remain effective, and classified these rights as "intellectual property," thereby excluding them from certain protections under Section 230 of the Communications Act.
In contrast, the NO FAKES Act of 2024, introduced by Senator Chris Coons in July 2024, extended beyond the parameters of its predecessor and included more comprehensive definitions and protections. It introduced a renewed concept for posthumous rights, requiring ongoing proof of active use to extend the rights initially granted for 10 years, extendable in five-year increments up to a total of 70 years. Moreover, this version aims to preempt state laws protecting digital likeness rights, albeit with specific exceptions for existing state laws, deepfake pornography regulations, and regulations concerning digital replica creation capabilities.
California’s Legislative Approach
California has taken proactive measures through its own legislative efforts to regulate digital replicas via two recently enacted statutes, AB 2602 and AB 1836, both signed into law on September 17, 2024. AB 2602 nullifies contractual provisions allowing digital replica use that circumvents in-person work without legal representation or a precise intended use clause. This law is set to govern performances from January 2025 onwards.
Meanwhile, AB 1836 specifically targets the use of a deceased individual's voice or likeness in digital replicas, mandating prior consent from their representatives. Both laws echo the federal bill's definition of digital replicas but stop short of preemption, thus serving to fortify California's stance on personal NIL rights and usage.
Definitional and Legal Challenges
Across these legislative frameworks, defining "digital replica" remains a cornerstone yet presents significant challenges. The necessity of descriptors such as "newly-created," "highly realistic," and "readily identifiable" sparks debate on the breadth and specificity of these criteria. Furthermore, interpreting what constitutes a fundamental alteration of performance character adds layers of complexity to these legal definitions.
The discrepancies between state and federal approaches, especially regarding posthumous rights and the preemption of state laws, illustrate the intricate balancing act lawmakers face in navigating intellectual property rights amidst evolving technology. As both technology and societal norms shift, continuous dialogue and adaptation of these regulations will likely be paramount in addressing the multifaceted issues arising from digital transformations.
Source: Noah Wire Services