NO FAKES Act of 2025
- Sponsor
- Sen. Coons, Christopher A. [D-DE]
- Committees
- Judiciary Committee (primary)
- Last action
- Apr 9, 2025
Bottom line
The NO FAKES Act creates a federal right to control one's digital likeness, aiming to combat unauthorized AI-generated content while balancing free speech and online platform responsibilities.
What it actually does
This bill establishes a new federal intellectual property right for individuals to control the use of their voice and visual likeness in 'digital replicas,' which are computer-generated, highly realistic electronic representations. It defines liability for unauthorized public display, distribution, or transmission of such replicas, or for products/services primarily designed to create them, and outlines civil remedies. The bill also creates safe harbor provisions for online service providers and preempts certain state laws while preserving others.
Proponents argue
Supporters argue that the bill is crucial for protecting individuals, particularly artists and public figures, from exploitation and misrepresentation by advanced AI technologies that can create highly realistic digital replicas without consent. They contend it provides a much-needed federal legal framework to address the fragmented landscape of state laws, safeguarding personal identity and economic rights in the rapidly evolving digital age.
Opponents contend
Critics might argue that the bill's definitions of 'digital replica' and 'materially altered' could be overly broad, potentially stifling creativity, parody, or legitimate artistic expression. Concerns could also be raised regarding the compliance burden on online service providers, the potential for chilling effects on user-generated content, and the balance between intellectual property rights and First Amendment protections. Some may also suggest that existing state-level right of publicity laws are sufficient or that a federal approach could create unintended consequences for emerging technologies.
The bill is moderately complex due to its detailed legal definitions, liability frameworks, and carve-outs, requiring careful reading to understand its full implications, which may exceed the time typically allotted for quick legislative review.
Section 2(b)(1)
Creation of Digital Replication Right
This provision establishes a new federal right for individuals or their designated right holders to authorize the use of their voice or visual likeness in a 'digital replica.' This means individuals gain control over AI-generated or otherwise digitally created versions of themselves that they did not actually perform or appear in, or that materially alter their original performances.
Supporters argue
Supporters argue this provision is fundamental to protecting individuals from unauthorized exploitation of their identity in the digital age, ensuring they have economic control over their likenesses and preventing misrepresentation.
Critics contend
Critics might contend that this broad right could be interpreted to stifle creative works that use or reference individuals without explicit authorization, potentially impacting parody, satire, or other forms of artistic expression.
Tradeoffs
This provision balances the individual's right to control their likeness against the potential for broad application that could impact creative freedom and the use of AI in content creation.
Section 2(b)(2)
Nature and Duration of the Digital Replication Right
This section defines the digital replication right as a property right that is not assignable during an individual's lifetime but is licensable. Crucially, it does not expire upon death, transferring to heirs or assignees. The right lasts for 10 years post-mortem, with potential 5-year renewals up to a maximum of 70 years after death, provided there is active and authorized public use of the likeness.
Section 2(c)(1)-(2)
Liability for Unauthorized Digital Replica Activities
This section establishes civil liability for any individual or entity that publicly displays, distributes, transmits, or otherwise makes available an unauthorized digital replica. It also extends liability to those who distribute, import, or make available products or services primarily designed to produce unauthorized digital replicas, or those marketed for such purposes.
Section 2(c)(3)
Notice or Knowledge Requirement for Liability
To incur liability under this Act, an online service provider must have received a specific notification or court order (or willfully avoided it) that the material is an unauthorized digital replica or a prohibited product/service. For individuals or entities not operating online services, actual knowledge or willful avoidance of knowledge is required.
Section 2(c)(5)
Exclusions from Liability for Certain Uses
The bill provides several exclusions from liability, including for digital replicas used in bona fide news, public affairs, or sports broadcasts; documentaries or historical/biographical works (unless creating a false impression of participation or used in musical sound recordings synchronized to audiovisual works, subject to First Amendment); bona fide commentary, criticism, scholarship, satire, or parody; and fleeting or negligible uses. However, these exclusions do not apply to digital replicas depicting sexually explicit conduct.
Section 2(d)(1)(B)
Online Service Provider Safe Harbors
This provision outlines conditions under which online service providers can avoid liability for user-uploaded material. To qualify, providers must adopt and implement a repeat violator policy (for certain services) and, upon receiving a valid notification, expeditiously remove or disable access to the identified unauthorized digital replica. For larger services, they must also remove other publicly available instances matching a digital fingerprint that were uploaded after valid notice.
Section 2(g)
Federal Preemption and Preservation of State Laws
This section states that the new federal digital replication rights preempt any state law causes of action for an individual's voice and visual likeness in a digital replica within an expressive work. However, it explicitly preserves existing state statutes and common law regarding digital replicas as of January 2, 2025, as well as state laws specifically regulating sexually explicit or election-related digital replicas, and laws concerning products/services capable of producing digital replicas.
The definition of 'digital replica' includes a representation 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.'
Section 2(a)(2)
Why it matters:This is standard legislative practice for defining terms, but the specific wording 'materially altered' is highly subjective and its interpretation will be central to many disputes, making it a critical detail easily overlooked.
Case for: Supporters argue this language is necessary to capture instances where an individual's existing performance is manipulated or changed using AI to create a new, unauthorized representation, which should also be protected.
Case against: Critics might argue that 'materially altered' is vague and could be broadly interpreted, potentially encompassing transformative works, parodies, or remixes that should be protected under fair use or free speech principles.
Estimated impact: This specific phrasing will significantly influence the scope of the digital replication right, determining what constitutes an infringing use versus a permissible creative adaptation.
This subsection details the requirements for renewing a post-mortem digital replication right, including filing a notice with the Register of Copyrights during a specific 2-year renewal period, providing a sworn statement of active and authorized public use, and allowing the Copyright Office to maintain a public directory and charge fees.
Section 2(b)(2)(D)
Why it matters:This is standard legislative practice for administrative procedures, but it's crucial for right holders to understand to maintain their post-mortem rights.
Case for: Supporters argue that requiring active use and registration for renewals prevents the right from becoming perpetual or being held by entities with no ongoing connection to the likeness, ensuring it remains tied to commercial exploitation.
Case against: Some might argue that the administrative burden of periodic renewals and demonstrating 'active and authorized public use' could be onerous for smaller estates or those with less commercial activity, potentially leading to inadvertent loss of rights.
Estimated impact: This provision creates an administrative framework for managing post-mortem likeness rights, affecting the Copyright Office's workload and the long-term viability of these rights for estates.
This short clause states that the general exclusions from liability (e.g., for news, satire, commentary) do not apply where the applicable digital replica is used to depict sexually explicit conduct.
Section 2(c)(5)(B)
Why it matters:While technically a carve-out from the exclusions, its placement could be seen as a way to ensure this critical provision is included without disrupting the flow of the main exclusions list. It is a politically sensitive area.
Case for: Supporters strongly advocate for this provision, arguing it is essential to protect individuals from the severe harm of non-consensual sexually explicit deepfakes, ensuring that such content receives no protection under free speech or other exclusions.
Case against: No specific opposition is typically raised against this provision due to the widespread condemnation of non-consensual sexually explicit deepfakes.
Estimated impact: This provision ensures that victims of sexually explicit deepfakes have clear legal recourse, as the perpetrators cannot claim protection under free speech or other exemptions, significantly strengthening protections against this specific type of harm.
This subsection establishes penalties for knowingly making material misrepresentations in a notification of claimed violation, including misrepresenting that material is unauthorized or that the notifying party has authority. It also states that failure to perform a good faith review before sending a notice constitutes a knowing material misrepresentation.
Section 2(d)(4)
Why it matters:This is standard legislative practice for deterring abuse of legal processes, but the 'good faith review' aspect is a specific operational detail that could be missed.
Case for: Supporters argue this provision is critical for preventing abuse of the notice-and-takedown system, deterring false or vexatious claims that could lead to legitimate content being removed and harming online services or end users.
Case against: Some might argue that the 'failure to perform a good faith review' standard could be difficult to prove or disprove in court, potentially leading to additional litigation over the validity of notifications.
Estimated impact: This provision aims to ensure the integrity of the notification system, protecting online services and end users from frivolous or malicious takedown requests, while imposing financial penalties for abuse.