What changed between these versions
A substantive revision, v2 introduces a new limitation on liability for purely coincidental resemblances and clarifies the definition of "user uploaded material" to exclude video game content. It also refines provisions related to post-mortem digital replication rights and the scope of unauthorized use of digital replicas.
Overview
A handful of significant changes and numerous minor clarifications are present between v1 and v2. · v2 clarifies the scope of the digital replication right and liability, adds specific exclusions for certain types of content, and provides new mechanisms for post-mortem right registration, generally refining the bill's operative provisions.
The most significant change in v2 is the addition of a new limitation on liability for purely coincidental resemblances of voice or visual likeness, provided the individual lacks public recognition or commercial value. Additionally, the definition of "user uploaded material" now explicitly excludes material embodied in video games and generated by end users. Several provisions are updated to clarify that the right and liability pertain to the 'use of a digital replica' rather than the replica itself, and new rules are introduced for initial post-mortem registration for individuals deceased for 8 or more years.
Major additions
This new subclause explicitly excludes material embodied in a video game and generated or customized by a consumer end user of that video game from the definition of "user uploaded material."
This addition significantly narrows the scope of content covered by the bill's liability provisions, specifically exempting user-generated content within video games. This provides a clear carve-out for the video game industry and its users, reducing potential liability for platforms hosting such content.
This new subclause clarifies that the commercial availability of a sound recording or audiovisual work in which an individual's voice or visual likeness is readily identifiable shall constitute "active and authorized public use" for the purpose of renewing post-mortem rights.
This clarification provides a specific, measurable standard for right holders seeking to renew post-mortem digital replication rights. It simplifies the demonstration of active use, potentially making it easier for estates to maintain control over a deceased individual's likeness.
This new subclause establishes a specific process for initial post-mortem registration for individuals who died 8 years or longer before the Act's enactment. It allows right holders of individuals deceased 10+ years to register within 90 days of the effective date, provided they demonstrate authorized public use in the preceding 2 years. For those deceased 8 to 10 years, they may use this new process or the general registration process.
This addition creates a retroactive mechanism for right holders of individuals who died before the Act's enactment to register and protect post-mortem digital replication rights. It provides a specific window and criteria, ensuring that these rights can be established even for historical figures, thereby expanding the practical applicability of the post-mortem right.
This new subsection introduces a limitation on liability for activities involving digital replicas if the resemblance to an actual individual is purely coincidental, and the actual individual has not achieved public recognition or their voice/likeness lacks commercial value. It also states that a disclaimer alone does not constitute evidence to support this limitation.
This addition creates a significant defense against liability for creators and platforms where a digital replica unintentionally resembles an actual person, particularly if that person is not publicly known or commercially exploited. This could reduce the risk of frivolous lawsuits and protect incidental resemblances, while maintaining protections for commercially valuable likenesses.
Modifications
This modification clarifies that the right pertains to the *use* of a digital replica that *embodies* the likeness, rather than the likeness existing *in* a replica. This subtle change emphasizes the actionable event as the use of the replica, aligning with the overall focus on unauthorized use.
Before
v1 stated that each individual or right holder has the right to authorize the "use of the voice or visual likeness of the individual in a digital replica."
After
v2 states that each individual or right holder has the right to authorize "the use of a digital replica embodying the voice or visual likeness of the individual."
This modification strengthens the protection of the individual's right by explicitly preventing involuntary transfers during their lifetime. This ensures that the right cannot be seized or transferred against the individual's will through legal or financial mechanisms, providing greater personal control over their likeness.
Before
v1 stated that the digital replication right is "not assignable during the life of the individual."
After
v2 clarifies that the right is "not assignable during the life of the individual, including through involuntary transfer, such as by means of bankruptcy, levy, lien enforcement, court order, or other legal process."
This modification clarifies who can legally sign a license agreement for a deceased individual's digital replica. It explicitly empowers the right holder or their authorized representative to execute such agreements, streamlining the process for managing post-mortem rights.
Before
v1 required a license agreement to be "signed by the individual or an authorized representative of the individual."
After
v2 requires a license agreement to be "signed by— (AA) the applicable individual; or (BB) in the case of a deceased individual, the right holder or an authorized representative of the right holder."
This modification clarifies that liability is incurred for the *unauthorized use* of a digital replica, rather than the mere existence of an unauthorized digital replica. This refines the legal standard, focusing on the actionable conduct of using the replica without permission.
Before
v1 referred to "a digital replica that was not authorized by the applicable right holder."
After
v2 refers to "a digital replica, the use of which was not authorized by the applicable right holder."
This modification slightly narrows the scope of exclusions for news, public affairs, sports broadcasts, and documentaries by removing the term "produced." This implies that the act of *creating* the digital replica might not be excluded, but its *use* in these specific contexts remains protected, potentially shifting focus to the distribution aspect.
Before
v1 referred to a digital replica being "produced or used" in certain contexts (e.g., news, documentaries).
After
v2 refers to a digital replica being "used" in these contexts, removing "produced or."
This modification aligns the language in the safe harbor provisions with the clarified scope of the right and liability. Online services are now explicitly obligated to remove or disable access to material embodying the *unauthorized use* of a digital replica, rather than just an unauthorized digital replica, reinforcing the focus on actionable use.
Before
v1 referred to "unauthorized digital replica" in the context of online service removal obligations.
After
v2 refers to "unauthorized use of a digital replica" in these contexts.
This modification provides clearer, more distinct categories for what constitutes a claimed violation in a notification. By separating the unauthorized use of a digital replica from a problematic product or service, it enhances precision in reporting violations to online service providers.
Before
v1 required a notification to state that the material is "an unauthorized use of a digital replica or a product or service described in subsection (c)(2)(B)."
After
v2 restructures this to state that the material is "(I) a digital replica, the use of which is unauthorized; or (II) a product or service described in subsection (c)(2)(B)."
This modification integrates the newly added Section 2(e)(3) (limitation on liability for coincidental resemblance) into the safe harbor and penalty provisions. This ensures that parties can properly assert this new defense in counter-notifications and that misrepresentations regarding this defense are subject to penalties, providing a more comprehensive legal framework.
Before
v1 referred to exclusions under subsection (c)(4) or (5) as valid legal defenses in counter-notifications and false representation penalties.
After
v2 adds explicit reference to "a limitation on liability under subsection (e)(3)" as a valid legal defense.
This modification aligns the language with the overall shift to focusing on the 'use' of a digital replica. It clarifies that disclaimers do not negate liability for the unauthorized *use* of a digital replica, reinforcing the bill's intent to protect against unauthorized exploitation.
Before
v1 stated that it is not a defense that a disclaimer was displayed for an "applicable digital replica."
After
v2 (renumbered) states it is not a defense that a disclaimer was displayed for an "applicable use of a digital replica."
This modification ensures that the remedies for civil actions are consistently applied to the *unauthorized use* of a digital replica, rather than the replica itself. This reinforces the focus on the actionable conduct and aligns with the refined scope of the digital replication right.
Before
v1 referred to "unauthorized digital replica" in the context of civil action remedies.
After
v2 refers to "unauthorized use of a digital replica" in these contexts.
This modification clarifies that the preemption provisions and effective date apply specifically to the "Voice and Visual Likeness Rights" section (Section 2) of the bill, rather than the entire Act. This could narrow the scope of preemption, potentially allowing other parts of the Act (if any were added beyond Section 2) to interact differently with State law or have different effective dates.
Before
v1 referred to the rights and effective date applying to "this Act."
After
v2 changes these references to "this section."
Scope
Meaningful expansion or narrowing — Changes are concentrated in the core operative provisions of Section 2, specifically definitions, the nature of the right, liability, and safe harbors. Minor textual adjustments are scattered throughout this section. — v2 represents a refinement within the same policy direction, primarily clarifying the scope of the right and liability, and adding specific exceptions and procedural mechanisms. It does not fundamentally alter the bill's core purpose of protecting individual voice and visual likeness rights. — The changes, particularly the clarification of "use of a digital replica" and the addition of the liability limitation, interact significantly with other provisions by refining the conditions under which the right is asserted, liability is incurred, and safe harbors apply. The new post-mortem registration process also adds a new procedural layer.
Impact analysis
Creators and platforms hosting user-generated content in video games
This group gains a clear exemption from liability under the bill for a specific category of content, reducing their potential legal exposure.
v2 explicitly excludes material embodied in video games and generated or customized by end users from the definition of "user uploaded material."
Right holders of deceased individuals
This group gains clearer guidance and a new procedural pathway to establish and maintain post-mortem digital replication rights, potentially making it easier to protect the likenesses of historical figures.
v2 clarifies what constitutes "active and authorized public use" for post-mortem right renewals and introduces a new process for initial registration for individuals deceased 8 or more years prior to enactment.
Individuals whose voice or visual likeness is used in a digital replica without authorization
This group experiences a clarification of their protected rights, with a stronger emphasis on controlling the *use* of their likeness and enhanced protection against involuntary assignment of their rights.
v2 clarifies that the right and liability pertain to the 'use of a digital replica' rather than the replica itself, and explicitly prevents involuntary transfer of the right during their lifetime.
Individuals or entities creating or distributing digital replicas with purely coincidental resemblances
This group gains a new, specific defense against liability, reducing their risk of legal action in cases of unintentional resemblance, particularly when the actual individual's likeness has no commercial value.
v2 introduces a new limitation on liability if the resemblance is purely coincidental and the actual individual lacks public recognition or commercial value.