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.
NO FAKES Act of 2026
- Sponsor
- Sen. Coons, Christopher A. [D-DE]
- Committees
- Judiciary Committee (primary)
- Last action
- Jun 24, 2026
Bottom line
The NO FAKES Act of 2026 creates a federal intellectual property right for individuals to control the use of their voice and visual likeness in AI-generated digital replicas, aiming to provide legal recourse against unauthorized exploitation.
What it actually does
This bill establishes a new federal intellectual property right for individuals over their voice and visual likeness when used in 'digital replicas' (AI-generated representations). It outlines conditions for authorized use, creates civil liability for unauthorized use, and provides safe harbor provisions for online service providers who comply with specific notice-and-takedown procedures, including digital fingerprinting. The right is transferable post-mortem and has a defined duration.
Proponents argue
Supporters argue this bill is crucial for protecting individuals, particularly artists and public figures, from the unauthorized creation and use of AI-generated deepfakes and digital replicas, safeguarding their identity and economic value in the digital age. They contend it provides necessary legal clarity and remedies in a rapidly evolving technological landscape, ensuring individuals maintain control over their identity.
Opponents contend
Critics might argue that the bill's definitions of 'digital replica' and 'expressive work' could be overly broad, potentially stifling artistic expression, parody, or legitimate commentary. Concerns could also be raised about the technological burden and costs imposed on online service providers, the physical notarization requirement for counter-notifications, and the potential for chilling effects on user-generated content or historical uses of likenesses.
The bill is moderately long and introduces complex legal concepts, requiring significant time for a thorough understanding beyond a quick read, especially given its detailed definitions, safe harbor provisions, and liability structures.
Section 2(a)
Key Definitions for Digital Replicas and Online Services
This section defines critical terms central to the bill, including 'digital fingerprint' (a unique electronic identifier), 'digital replica' (a newly created, computer-generated, highly realistic electronic representation of an individual's voice or visual likeness where the individual did not perform or was materially altered), 'individual' (any human being, living or dead), 'online service' (various platforms predominantly providing public access to user-uploaded material), and 'right holder' (the individual or their licensee/heir). It also specifically excludes material embodied in video games and generated by consumer end users from the definition of 'user uploaded material'.
Supporters argue
Supporters argue that precise definitions are essential to ensure the law targets harmful deepfakes effectively while avoiding unintended consequences for legitimate uses. The exclusion for video games addresses specific industry concerns and prevents overreach into interactive entertainment.
Critics contend
Critics might contend that the definition of 'digital replica' could still be ambiguous, potentially missing emerging AI technologies or inadvertently capturing legitimate creative works. The 'materially altered' clause could be a point of contention in legal interpretation.
Tradeoffs
The bill balances the need for comprehensive protection against the risk of overreach that could stifle innovation or legitimate artistic expression, particularly through its detailed definitions and specific exclusions.
Section 2(b)
Establishment and Nature of the Digital Replication Right
This provision creates a new federal property right for individuals (or their right holders) to authorize the use of their voice or visual likeness in digital replicas. This right is non-assignable during the individual's lifetime, even through involuntary transfers like bankruptcy, but becomes transferable post-mortem. It lasts for 10 years after death, renewable for 5-year periods if actively used, up to a maximum of 70 years post-mortem. Licenses for living individuals are capped at 10 years (5 years for minors, requiring court approval), and collective bargaining agreements are exempt from these duration limits.
Section 2(c)
Civil Liability for Unauthorized Digital Replica Use and Related Products
This section establishes civil liability for individuals or entities that publicly display, distribute, transmit, or make available unauthorized digital replicas, or products/services primarily designed to create such replicas without authorization. Online service providers incur liability if they receive a valid notification or willfully avoid knowledge, while other entities require actual knowledge or willful avoidance. The bill includes exclusions for bona fide news, public affairs, sports, documentaries, commentary, criticism, scholarship, satire, parody, or fleeting uses, but these exclusions do not apply to sexually explicit conduct. Certain internet service providers and nonprofit educational/library institutions are also excluded from liability.
Section 2(d)
Safe Harbors for Online Service Providers and Notification Procedures
This section outlines conditions for online service providers to avoid liability. It requires certain providers to adopt and implement a repeat violator policy and to expeditiously remove or disable access to infringing material upon receiving a valid notification from a right holder. It mandates the use of digital fingerprints for repeat infringements on user-uploaded content services. A counter-notification process is established for users whose content is removed, requiring a physical signature witnessed by a notary public and consent to jurisdiction. Penalties are introduced for knowingly false or deceptive notifications or counter-notifications, including statutory damages of $25,000 per misrepresentation or actual damages plus costs and attorney's fees.
Section 2(e)
Civil Action and Remedies for Digital Replica Violations
This section details who can bring a civil action (right holders, parents/guardians of minors, or entities with exclusive contracts for sound recording artists). It sets a 3-year limitations period 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-$750,000 depending on the violator and good faith efforts), actual damages plus profits, injunctive relief, and punitive damages for willful violations with malice or fraud. It also includes a limitation on liability for purely coincidental resemblance if the actual individual has not achieved public recognition or lacks commercial value.
Section 2(f)
Subpoena Power for Identifying Alleged Violators
This provision allows right holders or eligible plaintiffs to request a federal court clerk to issue a subpoena to an online service provider to identify an alleged violator of the Act. The request must include a copy of the notification of violation and a sworn declaration that the information will only be used to protect rights under this section.
Section 2(g)
Federal Preemption of State Digital Likeness Rights
This section establishes that the federal rights created by this Act preempt any state law cause of action for the protection of an individual's voice and visual likeness rights in connection with a digital replica in an expressive work. However, it explicitly carves out exceptions, stating it 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 concerning products/services capable of producing digital replicas.
Section 2(j)
Retroactive Application of Digital Replication Right
This provision clarifies that liability under the Act only applies to conduct occurring after the date of enactment, or to licenses/contracts executed after enactment. However, the digital replication right itself applies to any individual, regardless of whether the individual dies before, on, or after the date of enactment. For those deceased before enactment, the right vests in their executors, heirs, assignees, or devisees.
Excludes material embodied in video games and generated or customized by a consumer end user of that video game from the definition of 'user uploaded material.'
Section 2(a)(8)(B)
Why it matters:This is likely standard legislative practice to refine definitions and scope, specifically addressing concerns raised by the video game industry to prevent unintended impacts on their unique form of user-generated content.
Case for: Supporters argue this exclusion prevents the bill from inadvertently stifling creativity and user-generated content within video games, which often involves player customization and unique digital interactions, recognizing it as a distinct medium.
Case against: Critics might argue that this creates a potential loophole where digital replicas within video games could be exploited without the same protections, depending on the nature of the game and user-generated content, potentially leaving individuals vulnerable in that specific context.
Estimated impact: This provision has a significant impact on the video game industry and its users, potentially exempting a large category of digital likeness use from the bill's core liability provisions.
States that the digital replication 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.'
Section 2(b)(2)(A)(ii)
Why it matters:This is standard legislative practice for defining the precise nature of a new property right, ensuring its fundamental characteristics are clearly delineated from the outset.
Case for: Proponents argue this protects individuals from being forced to relinquish control over their digital likeness, ensuring it remains a personal right during their lifetime, even in situations of financial distress, thereby safeguarding personal autonomy.
Case against: Critics might argue this limits the economic flexibility of individuals, preventing them from using their digital likeness as collateral or an asset in certain financial situations, potentially hindering their ability to leverage their personal brand for economic benefit.
Estimated impact: This provision has a significant impact for individuals facing financial hardship or those seeking to leverage their likeness as an asset, as it restricts how this new property right can be used or seized.
Requires a 'physical signature, witnessed or attested to in person by a licensed notary public' for a counter-notification to be effective.
Section 2(d)(4)(B)(i)
Why it matters:This could be intended to ensure the authenticity and seriousness of counter-notifications, reducing frivolous claims, but it also creates a significant procedural hurdle for users.
Case for: Supporters argue this ensures the legitimacy of counter-notifications, preventing bad actors from easily reinstating infringing content and reducing the burden on right holders to challenge fraudulent claims, thereby streamlining the enforcement process.
Case against: Critics contend this requirement is an undue burden on ordinary users, especially those without easy access to a notary, potentially disenfranchising them from challenging content removals. It could disproportionately affect users in rural areas or those with limited resources, creating an accessibility barrier.
Estimated impact: This provision has a significant impact for users of online services who wish to challenge content removals, potentially making the counter-notification process more difficult and less accessible for many.