What’s Really in the NO FAKES Act

The most significant intersection of entertainment and politics in 2024 was not George Clooney’s New York Times op-ed calling for Joe Biden to step out of the Presidential race nor Hulk Hogan ripping his shirt off at the Republican National Convention, but four U.S. senators—two Democrats and two Republicans—getting together to introduce a bill specifically  to help protect actors, musicians and other performers from co-optation by people deploying artificial intelligence.

The bill—cleverly titled the NO FAKES Act, or the Nurture Originals, Foster Art, and Keep Entertainment Safe—also brought together both the actors and the studios, as in:

“With AI technology becoming increasingly powerful, I’m thrilled to see this important legislation to protect human beings from abuses, exploitation, and fraud. For SAG-AFTRA members, the NO FAKES Act is especially important since our livelihoods are intrinsically linked with our likenesses.”–Fran Drescher, President, SAG-AFTRA.

“We support protecting performers from generative AI abuse – and this bill thoughtfully establishes federal protections against harmful uses of digital replicas, while respecting First Amendment rights and creative freedoms. We particularly appreciate the sponsors’ inclusion of safeguards intended to prevent the chilling of constitutionally protected speech such as biopics, docudramas, parody and satire – which will be necessary for any new law to be durable.”–Charles Rivkin, Chairman and CEO, Motion Picture Association (MPA).

Arguably the studios’ support is less full-throated than that of the actors’: presumably the studios want to keep AI as a tool in their arsenal for use whenever they can, particularly for those identified categories (“biopics, docudramas, parody and satire”), all of which would readily lend themselves to “fake” performers.

So what exactly does the NO FAKES Act—introduced by senators Chris Coons (D-Del.), Marsha Blackburn (R-Tenn.), Amy Klobuchar (D-Minn.), and Thom Tillis (R-N.C.)—actually do?

Well, fundamentally it protects actors and musicians from having their looks and sounds digitally ripped off from them. Or, in the verbiage of the act, the creation of an unauthorized “digital replica,” which is a “computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual.”

 (It is interesting that Blackburn is there, as she is clearly representing the musicians of Nashville in this Act, which is undoubtedly why there is an equal addressing of vocals and visuals, while neither Laphonza Butler nor Alex Padilla—both senators from California—are in on the Act, representing Hollywood.)

Now the actor or musician in question owns the rights to her or his likeness and voice and can consequently “authorize the use of the voice or visual likeness. . .in a digital replica.”

But that person owns the rights, and they continue to exist after the individual’s death if this is part of the estate: then the post-mortem rights’ holder has the ability to control the digital replica for 10 years, which can then extend in five-year tranches, assuming that there has been use of the digital replica during the two years preceding when the five-year period is going to run out. This can repeat until 70 years after the death of the individual, which then puts that digital likeness into the public domain. Which makes one’s digital replica have the same length of legal protection as a copyright.

And there are, of course, the penalties associated with litigation for those who are violating the protected digital replicas specified in the act.

But let’s go back to the MPA’s interest in the carve out, which exclusions in the Act identify:

“(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, including some degree of fictionalization”—but this must not be presented as though the fake is actual the real person such that the “digital replica creates the false impression that the work is an authentic sound recording, image, transmission, or audiovisual work in which the individual participated.”

That is, were someone to create a film about the 2024 presidential campaign there couldn’t be a sequence showing “Snorge Klooney” ripping off his shirt at the Republican National Convention, although there’s also this:

“(iii) the applicable digital replica is produced or used consistent with the public interest in bona fide commentary, criticism, scholarship, satire, or parody”

So it isn’t it conceivable that there could be such a Clooney-image use if the AI user presents it as satire or parody? However, given the phalanx of attorneys that Clooney could bring to bear on anyone who tried that, it would undoubtedly not be worth the effort.

The 2023 contract negotiated by SAG-AFTRA with the Alliance of Motion Picture and Television Producers specifically addresses AI to protect actors. Essentially this requires that actors consent before someone creates a digital replica of them, and that there is payment to the physical performer if someone uses the digital replica in the actor’s stead.

There was another contact that SAG-AFTRA signed earlier this year, the 2024 Sound Recordings Code, with Warner Music Group, Sony Music Entertainment, Universal Music Group, and Disney Music Group.

Again, AI was an issue.

And clear verbiage in the contract summary put things into some perspective:

“The terms ‘artist,’ ‘singer,’ and ‘royalty artist’ under this agreement only include humans.”

Yes, we’ve arrived at the point where we need Congressional legislation and contractual definitions to protect the rights of humans from their digital selves.