Legislative efforts aim to regulate deepfake technologies

In the rapidly evolving landscape of digital media and technology, the issue of “deepfakes” — digitally altered replicas of individuals — has become a prominent topic of legislative focus. Efforts to create clear legal frameworks for the use and protection of such digital entities have been initiated at both the federal and state levels in the United States. The legislative journey includes the introduction of the NO FAKES Act at the federal level and recent statutes in the State of California.

The “Nurture Originals, Foster Art, and Keep Entertainment Safe” (NO FAKES) Act of 2023 was introduced to Congress in October 2023. This bill aimed to establish a property right for individuals’ likenesses in digital replicas, thereby offering a protective mechanism against unauthorised use. Backed by notable industry bodies such as the Recording Industry Association of America (RIAA) and the Screen Actors Guild‐American Federation of Television and Radio Artists (SAG-AFTRA), the bill proposed that these newly defined property rights would remain viable for 70 years post-mortem. The bill sought to categorise these rights as intellectual property, making certain protections under Section 230 of the Communications Act inapplicable in this context.

The proposed 2023 Act defined a “digital replica” as a sophisticated, computer-generated representation of a person’s image, voice, or likeness that was difficult to distinguish from the individual’s real-life persona. Key provisions included actionable recourse for the unauthorised dissemination of these digital constructs, with potential penalties reaching $5,000 per infringement.

In tandem, California has also pursued legislation in this area. Assembly Bill AB 2602 and AB 1836, which were passed in 2024, delineate regulations around digital replicas, particularly relating to contractual agreements and posthumous rights. AB 2602 notably renders void any contractual conditions permitting digital replicas in lieu of actual performance unless clear descriptions and legal representation were involved. Meanwhile, AB 1836 places restrictions on using a deceased person’s likeness without proper consent from their legal representatives, maintaining these rights for 70 years after death.

The NO FAKES Act of 2024, introduced by Senator Chris Coons in July 2024, sought to further refine these legal boundaries. This iteration attempted to amalgamate aspects of earlier definitions with new stipulations aimed at balancing the interests of creators and rights holders. It proposed an initial posthumous right span of 10 years, extendable based on evidence of “active and authorised public use,” and introduced registration requirements with the Register of Copyrights. This bill emphasised pre-emption of state laws, albeit with exceptions, indicating a move towards unified national legislation.

The definitions and criteria set out in these legislations have prompted questions about their practical application. Defining a “digital replica” involves nuances such as the degree of realism and identifiability, raising interpretational challenges. The ongoing development of artificial intelligence and digital media technologies suggests that the legal framework surrounding deepfakes will continue to evolve, necessitating adaptability within legislative circles.

In conclusion, these legislative efforts reflect a significant step towards addressing the complexities brought on by deepfake technologies. They demonstrate an ongoing dialogue about how best to protect individuals’ likenesses in an age where digital replicas can be both a source of artistic expression and potential exploitation. As this legal landscape matures, lawmakers and stakeholders will likely need to strike a careful balance between innovation and individual rights.

Source: Noah Wire Services