Please enjoy this blog authored by Kassi Burns, Senior Attorney, King & Spalding LLP.
As AI technologies rapidly advance, the ability to create convincing digital replicas of individuals' voices and likenesses has raised novel legal questions. The recently reintroduced NO FAKES Act (Nurture Originals, Foster Art, and Keep Entertainment Safe) represents a significant step toward creating federal protections against unauthorized deepfakes.
Key Provisions of the NO FAKES Act
The bipartisan bill, reintroduced to Congress on April 9, 2025, establishes a federal digital replication right that applies universally. Unlike previous iterations, this version has garnered support from both entertainment industry stakeholders and major tech companies, including Google, OpenAI, Amazon, and Adobe
Federal Right to Voice and Likeness
The Act creates a digital replication right defined as the right to control how one's voice or visual likeness is used in computer-generated content appearing in sound recordings, images, or audiovisual works. This right:
● Is established as a property right
● Cannot be assigned during life but is licensable and inheritable
● Survives death for 70 years
● Requires written licenses with specific descriptions of intended uses
This federal framework aims to harmonize the current patchwork of state laws, creating consistency where currently 14 states regulate non-consensual intimate deepfakes and 10 states limit political deepfakes.
Prohibited Conduct
The Act prohibits:
1. Unauthorized public distribution of digital replicas
2. Marketing services designed to create unauthorized digital replicas
Liability applies when an individual or service provider knows (or intentionally avoids knowing) that content is unauthorized.
Enforcement and Penalties
The enforcement mechanisms include:
● A Range of Statutory Damages: From $5,000 per work for individuals to $750,000 per work for non-compliant online services
● Actual Damages: Recovery of losses plus profit disgorgement
● Injunctive Relief: Court-ordered removal and cessation
● Punitive Damages: Available in cases of malice or willful misconduct
● Legal Costs: Recovery of attorneys' fees for prevailing parties
Platform Safe Harbor
To avoid liability, online services must promptly remove unauthorized digital replicas upon receiving a takedown notice from the right holder. Platforms must also register a designated agent with the U.S. Copyright Office to qualify for this protection.
Infrastructure-level services such as internet providers are expressly excluded from liability. The focus is on platforms that provide public access to user-uploaded content or AI tools.
First Amendment Protections
To address prior constitutional concerns, the bill includes explicit carveouts for use of digital replicas in news reporting, documentaries, biographical works, commentary, criticism, parody, and satire. These protections seek to preserve fair use principles and freedom of expression while safeguarding identity rights.
Implications for Legal Technology Professionals
For legal technology and operations professionals, the NO FAKES Act presents four key considerations:
1. Compliance Requirements: Organizations will need systems to process takedown notices for unauthorized digital replicas, similar to DMCA compliance but tailored to this new right.
2. E-Discovery Tools: New avenues for evidence gathering in cases involving digital impersonation will emerge, requiring updated e-discovery approaches.
3. Legal Knowledge Management: Teams may need to develop expertise in this new federal right that intersects with existing IP frameworks.
4. Technology Solutions: Demand will increase for tools that can detect AI-generated content and authenticate digital identities.
Conclusion
The NO FAKES Act represents a significant effort to establish "just-in-time" legal protections in an era of rapidly evolving AI capabilities. By formalizing a federal right in one's likeness, the bill signals a major shift in how identity rights may soon be protected. For legal technology professionals, staying ahead of these developments is crucial for both compliance and strategic advantage in advising clients navigating this emerging area of law.
#Just-in-Time
#Policy
#GenerativeAI
#FutureFocused