We compared the provisions of the NO FAKES bill proposed in the Senate and the U.S. Copyright Office’s report on digital replicas recommending the enactment of federal legislation to address deepfakes. Both proposals would recognize an exclusive right in digital replicas that depict an identifiable person’s likeness or voice. The NO FAKES bill is described as creating “a new federal property right to authorize the use of their voice or visual likeness (a digital replication right).” The bill itself classifies the right as “intellectual property for purposes of” Section 230 of the CDA, meaning the immunity from liability under Section 230 does not apply to violations of the NO FAKES bill.
new “horizontal” approach to address many different issues
Before getting to our comparison, one key observation: both the NO FAKES bill and the USCO recommendation adopt a horizontal approach that is meant to address many different problems (e.g., misinformation, nonconsensual deepfake pornography, commercial and noncommercial uses of someone else’s voice and likeness in various contexts, including frauds, robocalls, and artistic works, such as music). Individuals would get a broad new property right to generally stop others from making digital replicas of them, subject to some exceptions or, in the USCO report, a more limited scope of the right that does not prohibit the mere production or making of a digital replica of someone else (e.g., for personal private use).
One major concern raised by a horizontal approach is that, because it is trying to address so many different situations, it might not be narrowly tailored to withstand First Amendment scrutiny. (The NO FAKES bill anticipates this problem by including a severability section.)
A contrasting approach is a vertical approach that is tailored to address a specific harm (e.g., nonconsensual deepfake pornography or election misinformation) or a specific purpose (e.g., protecting the right of publicity, see the ELVIS Act). If the vertical approach addresses one problem or purpose, it probably has a better chance of surviving First Amendment scrutiny. Of course, the vertical approach requires that legislators spend more time crafting a specific approach for each problem, instead of trying to address it with a one-size-fits-all approach.
Will the proposed digital replica right withstand first amendment scrutiny?
Unclear. It’s a big question whether this horizontal approach, creating a new federal property right in one’s likeness and voice, will withstand First Amendment scrutiny. I hope to follow up with further analysis in a later post, but the lack of any exceptions for any deepfake involving a digital replica in a depiction of sexually explicit conduct does raise a serious First Amendment question. And there are others aspects of the proposals that may raise additional First Amendment concerns.
quick comparison between no fakes bill and copyright office report
| NO Fakes bill | Copyright Office recommendation | |
| Individuals protected | All humans | All humans |
| “Digital replica” defined | Yes | Yes |
| Exclusive right | Yes | Yes |
| Term | Can last post-mortem with renewal | During life |
| Registration | Mandatory for renewal of post-mortem period in Copyright Office | No |
| Assignable right? | No | No |
| Licensable right? | Yes, writing and signed | Yes, subject to conditions |
| Music Labels | Standing to sue if exclusive deal with sound recording artist and exclusive license to distribute the sound recoding | Not addressed |
| Violations and liability | Production Publication, reproduction, display, distribution, transmission of, or otherwise making available to the public, | Distribution or making available of an unauthorized digital replica, including noncommercial. *But not the act of creation alone. |
| Disclaimers | Does not shield liability | Not addressed |
| Actual knowledge required for violations? | Yes | Yes |
| Deepfakes involving digital replica depictions in sexually explicit conduct, or deepfake pornography | Liability with no exceptions | Liability. Unclear if exception for First Amendment apply |
| Protect artistic style? | Not discussed | Not intended |
| Remedies – damages | Greater amount between statutory damages tiered to type of defendant and actual damages | Choice of actual or statutory damages |
| Remedies – injunctions and equitable relief | Yes | Yes |
| Punitive damages | Yes for willful violations | No |
| Attorneys fees | Yes | Yes |
| Exceptions or exclusions | Specific exceptions, but none if digital replica involves depictions of sexually explicit conduct | Balancing test for First Am. |
| Safe Harbors | Yes 1. Manufacturers and distributors subject to conditional 2. Internet services – DMCA style | Yes Internet services – DMCA style |
| Statute of limitations | 3 year with discovery rule | Not specified |
| Preemption of state law | Yes | No |
As noted above, there are some major differences between the NO FAKES bill and the USCO Report’s recommendation.
- Term: The NO FAKES bill proposes a term that extends post-mortem, while the USCO Report proposes that it last only during the life of the individual.
- Exceptions: The NO FAKES bills has a list of enumerated exceptions, but these exceptions are not available if the depictions involve sexually explicit conduct. The USCO recommends a general, multi-factor balancing test to protect the First Amendment. No carve out is made for sexually explicit depictions (though unclear on the import).
- Sound recordings: The NO FAKES bill recognizes standing to assert the right for a person who has “a contract for the exclusive personal services of the sound recording artist as a sound recording artist; or (ii) an exclusive license to distribute or transmit 1 or more works that capture the audio performance of the sound recording artist.” Presumably, this may apply to some of the deals struck by the music labels. The USCO has no such provision.
- Damages: The NO FAKES bill would allow the recovery the greater of damages awards between designated statutory amounts (based on type of defendant) and actual damages. The USCO recommends both actual and statutory damages be available, but does not further specify the statutory amount.
- Punitive damages: The NO FAKES bill allows for punitive damages for willful violations. The USCO has no such provision.
We offer a more detailed comparison below.
full comparison between No fakes bill and Copyright office report
| NO FAKES bill | Copyright Office recommendation | |
| Individuals protected | All humans | All humans |
| “Digital replica” defined | ”digital replica” means a newly-created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that- (A) is embodied m a sound recording, image, audiovisual work, including an audio- visual work that does not have any accompanying sounds, or transmission- (i) in which the actual individual did not actually perform or appear; or (ii) that is a version of a sound recording, image, or audiovisual work in which the actual individual did perform or appear, in which the fundamental character of the performance or appearance has been materially altered; and (B) does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound re- cording or audiovisual work authorized by the copyright holder. | “‘digital replica‘: a video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual.” |
| Exclusive right | Digital replication right in “digital replica” Explained: “Provides individuals with a new federal property right to authorize the use of their voice or visual likeness (a digital replication right).” | Yes |
| Term | Post-mortem right The right shall terminate on the date that is the earlier of- (I) the date on which the 10-year period or 5-year period described in (iv)(II) [for a post-mortem right] terminates without renewal; or (II) the date that is 70 years after the death of the individual. Explained: “The 10-year postmortem term is renewable in 5-year increments so long as the right is actively and publicly used during the last two years of the original or renewed period; however, the post-mortem term is capped at 70 years (and could expire earlier if not renewed).” | Life of the individual Recommended to terminate on individual’s death. “Any postmortem protection should be limited in duration, potentially with the option to extend the term if the individual’s persona continues to be exploited.” “A federal digital replica right should prioritize the protection of the livelihoods of working artists, the dignity of living persons, and the security of the public from fraud and misinformation regarding current events. For these purposes, a postmortem term is not necessary.” “If postmortem rights are provided in a new federal law, we would recommend an initial term shorter than twenty years, perhaps with the option of extending it if Copyright and Artificial Intelligence, Part 1 Digital Replicas Report the persona continues to be commercially exploited.” |
| Registration | Voluntary for initial post-mortem period Mandatory for renewals in the Copyright Office | No |
| Assignable right? | No, not during life but may be after death. “Post-Mortem Transfers – Establishes that a post-mortem transfer or license must be in writing and signed by the right holder or the right holder’s authorized representative to be valid.” | No |
| Licensable right? | Yes, but writing and signed Explained: “For adults, the license duration is no longer than 10 years (it can be renewed), the license must be in writing, and the license agreement must describe intended uses of the digital replica. Includes additional guardrails for minors—the license duration can be no longer than 5 years (it can be renewed) and terminates when the individual turns 18; the license must also be in writing, must describe the intended uses of the digital replica, and must be approved by a court. The license requirements do not apply if the license is governed by a collective bargaining agreement and the license requirements do not affect terms and conditions of other licenses or contracts.” | Yes, but conditions, such as limiting licenses “to a relatively short term, such as five or ten years,” and informed consent. |
| Music Labels | Yes, standing to assert right if “any person that has, directly or indirectly, entered into- (i) a contract for the exclusive personal services of the sound recording artist as a sound recording artist; or (ii) an exclusive license to distribute or transmit 1 or more works that capture the audio performance of the sound recording artist.” | Nothing specific |
| Violations and liability | Any person that, in a manner affecting interstate commerce (or using any means or facility of interstate commerce), engages in an activity described in paragraph (2) shall be liable in a civil action brought under subsection (e). (2) ACTIVITIES DESCRIBED.-An activity described in this paragraph is either of the following: (A) The production of a digital replica without consent of the applicable right holder. (B) The publication, reproduction, display, distribution, transmission of, or otherwise making available to the public, a digital replica without consent of the applicable right holder. Explained: “). The prohibited activities are: (1) producing a digital replica without consent of the applicable right holder; and (2) publishing, reproducing, displaying, distributing, or transmitting, or otherwise making available to the public a digital replica without consent of the applicable right holder.” | “Liability should arise from the distribution or making available of an unauthorized digital replica, but not the act of creation alone. It should not be limited to commercial uses, as the harms caused are often personal in nature.” “In contrast, the creation of a digital replica in itself could be part of an artist’s experimental process or for a consumer’s personal entertainment. Such purely personal use would ordinarily be innocuous and can foster further creativity. If Congress were to impose liability for the mere act of creation, it would be advisable to include a defense for legitimate and reasonable private uses.” |
| Disclaimers | Does not shield liability | Not addressed |
| Actual knowledge required for violations? | Yes. “(3) KNOWLEDGE REQUIRED.-To incur liability under this subsection, a person engaging in an activ- ity shall have actual knowledge, which could be ob- tained through a notification that satisfies sub- section (d)(3), or shall willfully avoid having such knowledge, that- (A) the applicable material is a digital replica; and (B) the digital replica was not authorized by the applicable right holder.” | Yes. “Under the actual knowledge standard, liability would attach only where the distributor, publisher, or displayer acted with actual knowledge both that the representation in question was a digital replica of a real person, and that it was unauthorized. Rejects “should have known” “An objective or ‘should have known’ standard might ensnare unsuspecting or technologically unsophisticated defendants. Given the volume of potential outputs produced by current technologies, and the number of individuals who could be targeted, there are likely to be cases where a user passes along an image or audio recording without realizing that it is a replica of someone’s voice or likeness.218 And even where the user recognizes the subject of a digital replica, they may not be aware that the replica is inauthentic or unauthorized.” |
| Deepfakes involving digital replica depictions in sexually explicit conduct, or deepfake pornography | Yes, a violation with no statutory exceptions | Yes. Apparently the balancing exception would generally apply, although unclear if can be asserted for depictions of sexually explicit conduct. “The Office agrees that there are specific unauthorized uses that should incur criminal liability, including sexual deepfakes and other particularly harmful or abusive imagery. We do not take a position, however, on whether criminal penalties should be included in a federal digital replica right as opposed to stand-alone criminal legislation, such as the bills pending in this Congress.” |
| Protect artistic style? | No addressed | No. “In sum, there are several sources of protection under existing laws that may be effective against unfair or deceptive copying of artistic style. Given these resources, as well as the policy reasons not to extend property-like rights to style in itself, the Office does not recommend including style as protected subject matter under a federal digital replica law at this time.334 If existing protections prove inadequate, this conclusion may be revisited.” |
| Remedies – damages | “An amount equal to the greater of: Statutory damages (aa) in the case of an individual, $5,000 per work embodying the applicable unauthorized digital replica; (bb) in the case of an entity that is an online service, $5,000 per violation; and (cc) in the case of an entity that is not an online service, $25,000 per work embodying the applicable unauthorized digital replica; or (II) any actual damages suffered by the injured party as a result of the activity, plus any profits from the un- authorized use that are attributable to such use and are not taken into ac- count in computing the actual dam- ages” “Objectively Reasonable Belief – Caps damages at $1,000,000 for an online service that has an objectively reasonable belief that material claimed to be an unauthorized digital replica does not actually qualify as a digital replica, regardless of whether the material is ultimately determined to be an unauthorized digital replica” | Yes. 1. Actual damages: “Damages should include compensation for loss of income, damage to reputation, or emotional distress.” or 2. Statutory damages: “special damages enabling recovery by those who may not be able to show economic harm or afford the cost of an attorney.” |
| Remedies – injunctions and equitable relief | Yes | Yes |
| Punitive damages | “in the case of willful activity in which the injured party has proven that the defendant acted with malice, fraud, knowledge, or willful avoidance of knowledge that the conduct violated the law, the court may award to the injured party punitive damages” | No |
| Attorneys fees | Yes. “(iv) if the prevailing party is- (I) the party bringing the action, the court shall award reasonable attorney’s fees; or (II) the party defending the ac- tion, the court shall award reasonable attorney’s fees if the court determines that the action was not brought in good faith.” | Yes. Potentially for a prevailing party similar to Copyright Act. |
| Exceptions or exclusions | “(i) the applicable digital replica is pro- duced or used in a bona fide news, public affairs, or sports broadcast or account, provided that the digital replica is the sub- ject of, or is materially relevant to, the subject of such broadcast or account;” (ii) the applicable digital replica is a representation of the applicable individual as the individual in a documentary or in a historical or biographical manner, includ- mg some degree of fictionalization, un- less- (I) theproduction or use of that digital replica creates the false impression that the work is an authentic sound recording, image, transmission, or audiovisual work in which the indi- vidual participated; or (II) the digital replica 1s em- bodied in a musical sound recording that is synchronized to accompany a motion picture or other audiovisual work, except to the extent that the use of that digital replica is protected by the First Amendment to the Constitution of the United States;” “(iii) the applicable digital replica is produced or used consistent with the public interest in bona fide commentary, criti- cism, scholarship, satire, or parody; (iv) the use of the applicable digital replica is fleeting or negligible; or (v) the applicable digital replica is used in an advertisement or commercial announcement for a purpose described in any of clauses (i) through (iv) and the ap- plicable digital replica is relevant to the subject of the work so advertised or announced” | Balancing test for First Amendment protection “we believe that in light of the unique and evolving nature of the threat to an individual’s identity and reputation, a balancing framework is preferable. Although the potential overbreadth of categorical exceptions can be cabined by conditions like those proposed by MPA, this introduces a high level of complexity. In addition, we note that in today’s online environment, traditional categories such as “news” or “public affairs” are often difficult to define.282 The result may be to exempt conduct that legislators intended to prohibit. In our view, a balancing framework permits greater flexibility to assess whether a particular unauthorized use is protected by the First Amendment. Rather than checking a box marked “news” or “musical work,” courts can assess the full range of factors relevant to the First Amendment analysis. These could include the purpose of the use, including whether it is commercial; its expressive or political nature; the relevance of the digital replica to the purpose of the use; whether the use is intentionally deceptive; whether the replica was labeled; the extent of the harm caused; and the good faith of the user. We believe that this approach would leave room for the types of expressive works that many commenters identified as a priority. |
| Safe Harbors | 1. Yes, for manufacturing, importing, offering to the public, providing, or otherwise distributing a product or service unless the product or service (i) is primarily designed to produce 1 or more unauthorized digital replicas; (ii) has only limited commercially sig- nificant purpose or use other than to produce an unauthorized digital replica; or (iii) is marketed, advertised, or other- wise promoted by that person or another acting in concert with that person with that person’s knowledge for use m producing an unauthorized digital replica. 2. Yes, for online services that refers or links to an unauthorized digital replica by a third party, notice and disabling access: “if, upon receiving a notification described in paragraph (3), the online service removes or disables access to the material that is claimed to be an unauthorized digital replica as soon as is technically and practically feasible for that online service.” 3. Yes, for online services that host user-uploaded material containing an unauthorized digital replica, notice and takedown: “if, upon receiving a notification that satis- fies paragraph (3), the online service- (i) removes, or disables access to, all instances of the material (or an activity using the material) that is claimed to be an unauthorized digital replica as soon as is technically and practically feasible for that online service; and (ii) having done so, takes reasonable steps to promptly notify the third-party that provided the material that the online service has removed or disabled access to the material.” | “The statute should include a safe harbor mechanism that incentivizes online service providers to remove unauthorized digital replicas after receiving effective notice or otherwise obtaining knowledge that they are unauthorized.” |
| Statute of limitations | 3 years subject to discovery rule | No specific comment |
| Preemption of state law | “(1) IN GENERAL.-The rights established under this Act shall preempt any cause of action under State law for the protection of an individual’s voice and visual likeness rights in connection with a digital replica, as defined in this Act, in an expressive work.” Explained: “Preemption – Preempts causes of action under State law for the protection of an individual’s voice and visual likeness rights in connection with a digital replica, as defined in the NO FAKES Act, in an expressive work. Notwithstanding that preemption, nothing in the NO FAKES Act preempts: (1) causes of action under State statutes or common law in existence as of January 2, 2025, regarding a digital replica as defined in the Act; (2) causes of action under State statutes specifically regulating a digital replica depicting sexually explicit conduct as defined in 18 U.S.C. § 2256(2)(A) or an election-related digital replica; or (3) causes of action under State statutes or common law for the manufacturing, importing, offering to the public, providing, making available, or otherwise distributing a product or service capable of producing digital replicas.” | No, state claims allowed. |
Some parting thoughts on the exceptions and first amendment concerns
As mentioned above, a key difference in the approaches is that NO FAKES bill does not contain a general exception to balance the First Amendment.
This is a mistake, in my opinion. Given the horizontal nature of this approach and broad federal property right given, the specific exceptions are unlikely to capture the welter of circumstances a First Amendment interest is impaired.
For that reason, a general exception (of the kind proposed by the Copyright Office) should be added to the NO FAKES bill.
Another First Amendment problem with the NO FAKES bill is its elimination of any exception when the depiction involves sexually explicit conduct. See below. I have a hard time seeing how that overbroad approach can survive First Amendment scrutiny–and hope to follow up in a later post.
Hope to follow up with further thoughts. Stay tuned.