NO FAKES Act of 2025
- Sponsor
- Rep. Salazar, Maria Elvira [R-FL-27]
- Committees
- Judiciary Committee (primary)
- Last action
- Apr 9, 2025
Bottom line
The NO FAKES Act creates a federal property right for individuals to control their voice and visual likeness against unauthorized AI-generated digital replicas, establishing a framework for enforcement and civil liability.
What it actually does
This bill establishes a new federal intellectual property right for individuals over their voice and visual likeness, specifically targeting unauthorized "digital replicas" created by artificial intelligence. It defines key terms, outlines who holds these rights (including post-mortem), sets conditions for civil liability for unauthorized use, and provides safe harbors for online service providers who comply with notice-and-takedown procedures. The bill also specifies remedies for violations and addresses federal preemption of state laws.
Proponents argue
Supporters argue this bill is crucial for protecting individuals, especially artists and public figures, from the misuse and economic exploitation of their identity through advanced AI technologies. They contend it empowers individuals to control their digital identity, prevents the proliferation of harmful deepfakes, and provides necessary legal recourse without stifling legitimate creative expression or technological innovation.
Opponents contend
Critics might argue that the bill's broad definitions of "digital replica" and the extensive post-mortem rights could stifle artistic expression, parody, and commentary, potentially leading to over-enforcement or chilling effects on free speech. Concerns could also be raised about the practicalities and costs of enforcement against rapidly proliferating AI content, the burden on online service providers, and the potential for frivolous lawsuits.
The bill is moderately dense with legal definitions and provisions, requiring careful reading. The estimated 25 minutes is sufficient for an informed reader to grasp its core mechanics and implications.
Section 1
Short Title: NO FAKES Act of 2025
This section establishes the official short title of the bill as the "Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2025" or the "NO FAKES Act of 2025." This is the common name by which the legislation would be known and referenced.
Supporters argue
Supporters would argue that a clear and memorable short title aids in public discourse and legislative identification, making the bill's purpose more accessible and recognizable.
Critics contend
No specific opposition is typically raised against the short title of a bill, as it is primarily for identification purposes.
Section 2(a)
Key Definitions for Digital Replicas and Rights
This section defines critical terms, including "digital fingerprint," "digital replica" (a computer-generated, highly realistic electronic representation of an individual's voice or visual likeness where the individual did not perform or their performance was materially altered), "individual" (living or dead), "online service," and "right holder." These definitions are foundational for determining the scope and application of the new rights and liabilities established by the Act.
Section 2(b)
Establishment of Federal Voice and Visual Likeness Right
This section creates a new federal property right for individuals (or their right holders) to authorize the use of their voice or visual likeness in a digital replica or related products/services. This right is non-assignable during life but licensable, and crucially, it does not expire upon death. It transfers to heirs for an initial 10-year period, renewable for 5-year periods up to a maximum of 70 years post-mortem, provided there is active public use. Licenses for living individuals are limited to 10 years (5 years for minors, requiring court approval).
Section 2(c)
Civil Liability for Unauthorized Digital Replicas and Enabling Products
This section establishes civil liability for individuals or entities that publicly display, distribute, transmit, or make available unauthorized digital replicas, or distribute products/services primarily designed to create such replicas without authorization. Liability for online service providers requires notice or willful avoidance of notice, while other entities require actual knowledge or willful avoidance of knowledge. Exclusions are provided for bona fide news, public affairs, sports, documentaries, historical accounts, commentary, criticism, scholarship, satire, parody, fleeting uses, and related advertisements, unless the digital replica depicts sexually explicit conduct.
Section 2(d)
Safe Harbors and Notification Procedures for Online Services
This section outlines safe harbors for online service providers, similar to DMCA provisions. To qualify, certain online services must implement a repeat infringer policy and, upon receiving a valid notification of unauthorized use, expeditiously remove or disable access to the offending material. For some services, this includes removing other publicly available instances matching a digital fingerprint. It also requires the designation of an agent with the Copyright Office and specifies the elements required for an effective notification. Penalties are established for knowingly false or deceptive notifications.
Section 2(e)
Enforcement through Civil Actions and Available Remedies
This section details who can bring a civil action (right holder, parent/guardian for minors, or entities with exclusive contracts for sound recording artists). It sets a 3-year statute of limitations from discovery of the violation. It explicitly states that disclaimers (e.g., "AI-generated" or "unauthorized") are not a defense. Remedies include statutory damages ($5,000 to $750,000 depending on the violator and type of violation) or actual damages plus profits, injunctive relief, and punitive damages for willful malice/fraud. Attorney's fees are mandatory for prevailing plaintiffs and discretionary for prevailing defendants if the action was not brought in good faith.
Section 2(g)
Federal Preemption of State Likeness Rights
This section establishes that the new federal rights preempt existing state law causes of action for voice and visual likeness rights in connection with digital replicas in expressive works. However, it explicitly *does not* preempt state laws existing as of January 2, 2025, regarding digital replicas, state laws specifically regulating sexually explicit or election-related digital replicas, or state laws regarding products/services capable of producing digital replicas.
Defines a third category of "online service" (including search engines, app stores, cloud storage, etc.) that *only* falls under the "online service" definition if its provider registers a designated agent with the Copyright Office. This means these services are not automatically covered by the safe harbor provisions unless they proactively register.
Section 2(a)(5)(A)(iii) and 2(d)(2)
Why it matters:This is standard legislative practice to define terms precisely and link them to operational requirements. It's not necessarily evasive but requires careful reading to understand the conditional nature of the safe harbor for certain platforms.
Case for: Supporters would argue this provides flexibility, allowing certain services to opt into the safe harbor framework, while ensuring that those who benefit from it also fulfill administrative requirements. It targets services that predominantly provide public access to user-uploaded material, but allows others to register if they choose.
Case against: Critics might argue this creates an uneven playing field or a potential loophole if some services choose not to register, thus potentially avoiding the safe harbor's obligations while still hosting infringing content. It could also lead to confusion about which services are covered.
Estimated impact: Affects a wide range of internet services, potentially influencing their decision to register with the Copyright Office and thus their exposure to liability.
For providers of online services predominantly providing public access to user-uploaded material (categories (i) and (ii) of 2(a)(5)(A)), the safe harbor requires them to not only remove the specifically identified unauthorized digital replica but also "remove or disable access to all other publicly available instances of the work embodying the claimed unauthorized digital replica that... match the digital fingerprint... and are uploaded after valid, applicable notice was submitted to, and processed by, the provider."
Section 2(d)(1)(B)(ii)(II)
Why it matters:This is a technical detail for operationalizing the safe harbor, not necessarily evasive. It's a more advanced requirement than a simple takedown, reflecting the challenges of AI-generated content.
Case for: Proponents argue this "stay down" provision is crucial for effective enforcement, preventing the same unauthorized content from being repeatedly re-uploaded. Digital fingerprinting is seen as a necessary tool to combat the scale of AI-generated content.
Case against: Critics might argue that this imposes a significant technological and financial burden on online service providers, especially smaller ones, to implement and maintain digital fingerprinting systems. Concerns about false positives and the potential for over-censorship are also relevant.
Estimated impact: Could significantly increase the operational costs and technical complexity for certain online service providers, while providing more robust protection for right holders against repeat infringements.
States that a digital replica embodied in a work, if its use was authorized by a license, "may continue to be utilized in a manner consistent with the terms of that license after the expiration or termination of the license."
Section 2(b)(2)(E)
Why it matters:This is a standard provision in intellectual property law to protect investments made under valid licenses, ensuring that content created and distributed legally doesn't suddenly become illegal upon license expiration. It's not evasive.
Case for: Proponents would argue this is a necessary protection for licensees who have invested in creating and distributing works based on a valid authorization. Without it, the value of such works could be arbitrarily destroyed, creating significant economic uncertainty.
Case against: Critics might argue that this provision could undermine the intent of the time-limited nature of the right, allowing perpetual use of a digital replica even after the individual or their heirs wish to regain full control. This could be seen as diminishing the value of the right itself.
Estimated impact: Protects the commercial viability of works created under license, potentially for decades, even after the underlying license expires, ensuring continued revenue streams for licensees.