After receiving input from thousands of stakeholders during a public comment period, the U.S. Copyright Office has released the first of four reports in its Copyright and Artificial Intelligence series, this one to address digital replicas. The report can be found here.

The Copyright Office defines a digital replica as “a video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual,” and notes that digital replicas can be authorized or unauthorized, and may be produced by artificial intelligence or other types of digital technology. The report notes that digital replicas can offer significant benefits, such as voice simulation for artists with vocal injuries or illnesses, and harms, such as deepfake pornography.

KEY TAKEAWAYS:

• The Copyright Act does not provide specific protection against unauthorized digital replicas, although there are several federal and state laws and common-law doctrines that could provide protection.
• New federal legislation is needed to create a digital replica right and protect against infringement of that right.
• Any new federal digital replica legislation should not include artistic style as a protected subject matter.

EXISTING LEGAL FRAMEWORK

A number of existing federal and state laws and doctrines may be used to prevent certain types of unauthorized digital replicas. These include state rights of privacy and publicity, new state statutory prohibitions against unauthorized digital replicas, and federal statutory and common-law protections—including the Federal Trade Commission Act, the Lanham Act, and the Federal Communications Act, as well as private contractual agreements. The report notes, however, that the Copyright Act does not “protect an individual’s identity in itself, even when incorporated into a work of authorship. A replica of their image or voice alone would not constitute copyright infringement.”

CURRENT FEDERAL LEGISLATIVE PROPOSALS

Two statutory proposals that address digital replicas are currently pending in Congress:

• The No AI FRAUD Act (No Artificial Intelligence Fake Replicas And Unauthorized Duplications). This bill would establish intellectual property rights in voice and likeness, and protect against the use of unauthorized digital voice replicas and digital depictions that readily identify an individual. It would allow these rights to be transferred during the individual’s lifetime and make them descendible. Rights would endure at least ten years after the death of the individual, regardless of commercial exploitation during the person’s lifetime. The rights would continue until the earlier of: (a) proof that they had not been used commercially in a two-year period by an executor, transferee, heir, or devisee; or (b) the death of all executors, transferees, heirs, or devisees. Any authorization to use a digital depiction or digital voice replica would have to be in writing, and would be valid only if the individual is represented by counsel. Any such authorization granted by a minor would have to be approved by a court. Infringement could be found under both direct and secondary liability. First Amendment concerns would be addressed by way of a balancing test.
• The NO FAKES Act (Nurture Originals, Foster Art, and Keep Entertainment Safe), currently in proposed draft format. This legislation would create a right to “authorize the use of the image, voice, or visual likeness of the individual in a digital replica.” The right would last for the life of the individual plus 70 years, regardless of prior exploitation.

CONTOURS OF NEW FEDERAL RIGHT

The report identifies eight specific elements deemed critical to defining and constraining a new federal digital replica right. Those are:

1. Subject Matter. The report recalls its earlier definition of a “digital replica” as “a video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual”; but notes that any statutory definition of the term would require greater clarity. The report is specifically concerned that the federal legislation not “sweep too broadly,” and recommends limiting the digital replica right to “replicas that convincingly appear to be the actual individual being replicated.”
2. Persons Protected. All individuals should be covered by the statute recognizing a digital replica right, regardless of an individual’s fame or the commercial value of their identity.
3. Duration of Protection. Although there is broad agreement that protection for the digital replica right should last throughout the life of the individual, the existence and duration of post-mortem rights elicited a variety of opinions. The report concludes that a post-mortem term of protection is not necessary, but if included in a federal statute that addresses digital replicas, the post-mortem right should have a term of less than twenty years. That term could be extended if the right continues to be commercially exploited.
4. Licensing and Assignment. Due to concerns for the permanent loss of control over a fundamental aspect of individual identity, the report recommends that the digital replica right be licensable, but not fully assignable. In addition, given the risk of unequal contracting power or knowledge among relevant parties, the report recommends significant guardrails on licensing of the digital replica right. These might include limitations on license duration (perhaps a 5-to-10-year maximum) and informed consent by the licensor/owner of the right. Further, licenses involving minors would automatically expire when the minor reaches 18 years of age.
5. First Amendment Concerns. The report recommends a balancing framework for acknowledging and addressing First Amendment concerns. Relevant factors might include the purpose of the digital replica (commercial or not), 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, and the user’s good faith.
6. Infringing Acts. Referring to more traditional copyright infringement, the report finds that infringement of the digital replica right should require public dissemination (distribution, publication, public performance, display, or making available). Mere creation of a digital replica should not constitute infringement of that right. Direct liability should require a showing that the defendant had actual knowledge both that the representation was a digital replica of a real person, and that the replica was unauthorized. The report recommends the recognition of secondary infringement liability, subject to a “safe harbor” limitation for online service providers similar to that under the Digital Millennium Copyright Act.
7. Remedies. Both injunctive and monetary remedies are recommended, including the possibility of statutory damages and attorney fee awards. For more egregious violations, including non-consensual intimate material, the report recommends possible criminal liability, but takes no position on whether such liability should be included in digital replica legislation or part of a stand-alone criminal statute.
8. Preemption. Noting the settled expectations resulting from decades of state statutes and litigation around individual personality rights, the report recommends not preempting relevant state laws.

NO PROTECTION FOR PERSONAL STYLE

The report notes that under Section 102(b) of the Copyright Act, copyright protection does not extend to cover “any idea, procedure, process, system, method of operation, concept, principle, or discovery.” It discusses prior case law and commentary that finds “personal style” to be similar to an idea or concept—and thus not, by itself, sufficiently specific or expressive to warrant copyright protection. As a result, the report recommends not recognizing a federal statutory right of personal style, because that would be contrary to settled copyright law.

REMAINING REPORTS

The remaining reports will cover the potential for copyright in works created through the use of generative AI, training of AI models on copyrighted works, licensing considerations, and allocation of any potential liability. They will be published over the coming months, and we will analyze and summarize those reports as they are released.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice regarding your situation, you should contact an attorney.