NO FAKES Act of 2024

The NO FAKES Act of 2024 creates a federal property right for individuals to control the use of their voice or visual likeness in digital replicas, which are computer-generated, highly realistic electronic representations. It establishes liability for producing or distributing unauthorized digital replicas, provides safe harbors for online services, and sets rules for licensing, post-mortem rights, and civil remedies.

Sec. 2, Voice and visual likeness rights: This section defines a digital replica as a newly created, computer-generated, highly realistic electronic representation readily identifiable as an individual's voice or visual likeness, excluding authorized reproductions or samples. It grants each individual or right holder the exclusive right to authorize use of their voice or visual likeness in a digital replica, which is a property right that is not assignable during life but licensable for up to 10 years (5 years for minors, terminating at age 18). After death, the right lasts 10 years, renewable for additional 5-year periods if the right holder shows active authorized public use, up to 70 years after death. Licenses must be in writing, signed, and include a reasonably specific description of intended uses. Post-mortem transfers require written agreements, and renewal requires filing a notice with the Register of Copyrights.

Sec. 2, Liability: Any person who, affecting interstate commerce, produces or publishes an unauthorized digital replica without consent is liable in a civil action, provided they have actual knowledge or willfully avoid knowing it is unauthorized. Exclusions include use in news, documentaries, commentary, criticism, scholarship, satire, parody, or fleeting use, but not for sexually explicit conduct.

Sec. 2, Safe harbors: Online services are not secondarily liable for manufacturing or distributing products unless primarily designed for unauthorized digital replicas. They are not liable for referring or hosting unauthorized material if they remove or disable access upon receiving a proper notification, which must include a signature, identification of the individual and material, contact info, and a good faith belief statement. False or deceptive notices are unlawful, with penalties of at least $5,000.

Sec. 2, Civil action: Eligible plaintiffs include right holders, parents of minors, licensees, or those with exclusive contracts for sound recording artists. Actions must be brought within 3 years of discovery. Disclaimers are not a defense. Remedies include statutory damages ($5,000 per work for individuals, $5,000 per violation for online services, $25,000 per work for other entities) or actual damages, injunctive relief, punitive damages for willful conduct, and attorney's fees. Online services with an objectively reasonable belief that material is not a digital replica are not liable for damages over $1,000,000.

Sec. 2, Preemption: This Act preempts state law causes of action for voice and visual likeness rights in digital replicas in expressive works, but does not preempt state laws existing as of January 2, 2025, or those specifically regulating sexually explicit or election-related digital replicas.

Sec. 2, Rule of construction: This section is considered a law pertaining to intellectual property for purposes of Section 230(e)(2) of the Communications Act.

Sec. 2, Severability: If any provision is held invalid, the remainder remains valid.

Sec. 2, Retroactive effect: Liability applies only to activities occurring after the enactment date.