Proposed Legislation Reflects Growing Concern Over “Deep Fakes”: What Companies Need to Know
May 13, 2025
On April 9, 2025 a bipartisan group of Senators reintroduced the Nurture Originals, Foster Art, and Keep Entertainment Safe Act (NO FAKES Act).1 The reintroduction of the NO FAKES Act signals heightened awareness and concern about the increasing instances of “deep fakes,” electronic images, video, or voice recordings that have been manipulated using advanced technologies such as AI to misrepresent a person as doing or saying something they did not. The NO FAKES Act would establish a federal framework to protect individuals’ right of publicity. The legislation aims to provide individuals with protections from the unauthorized use of their likeness or voice in deep fakes and digital replicas.
The bill was originally introduced in July 2024 within days of the U.S. Copyright Office’s releasing its digital replicas report.2 The report advocates for increased protections on a federal level, asserting that generative AI’s unprecedented capabilities calls for a national response.3 After making key changes clarifying the responsibilities of online services, the promising reintroduced bill now has the backing of key stakeholders in both technology and entertainment sectors, including Google, the Recording Industry Association of America, the Motion Picture Association, SAG-AFTRA, YouTube, and OpenAI.4
The bill would establish a federal private right of action in the event of the use of a person’s voice or likeness in a digital replica with statutory damages. This right would exist during a person’s lifetime and after their death for a period of up to 70 years if the right to their digital likeness is renewed every ten years with the Copyright Office in accordance with the proposed law.5 The bill establishes a takedown procedure similar to the Digital Millenium Copyright Act (DMCA) for online services to avoid liability under the proposed law.
A Federal Right of Publicity
The right of publicity protects against the misappropriation of an individual’s name and likeness by giving individuals the exclusive right to license the use of such elements of their persona for commercial purposes.6 Currently, the right of publicity is primarily protected under state law. A majority of states recognize the right of publicity by statute, common law, or both.7 For example, California, Civil Code § 3344.1 already includes digital replicas in its protection of individuals’ right of publicity at the state level.8 Nevertheless, there is significant variation between states in the level of protection for postmortem and commercial uses, secondary and intermediary liability, jurisdiction and remedies, and balancing with First Amendment concerns.9 While the Copyright Act, the Federal Trade Commission Act, the Lanham Act, and the Communications Act can be used in protecting an individual’s name or likeness, there is no federal statute expressly protecting the right of publicity.10
If passed, the NO FAKES Act would create a new federal right of publicity specifically for digital replicas. The Act will not preempt any cause of action under state law or common law regulating digital replicas that are in existence as of January 2, 2025 or any causes of action under state statutes specifically regulating digital replicas depicting explicit sexual conduct or election-related digital replicas, but it will preempt all other causes of action under state law for the use of a person’s voice or likeness in a digital replica.11
Individuals’ Rights Under the NO FAKES Act
The NO FAKES Act defines a digital replica as “a newly-created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual…”12 It would protect artists’, public figures’, and private individuals’ right of publicity by granting them the exclusive right to authorize the use of their voice or likeness in a digital replica.
The NO FAKES Act does not permit assignment of digital replication rights during an individual’s lifetime, but it does allow rights to be licensed (either exclusively or non-exclusively) so long as the duration does not exceed ten years and the license agreement is in writing and reasonably describes the proposed uses.13 Licenses involving minors under 18 are limited to five years, must be in writing and must be approved by a court, and expire when the individual turns 18.14 This license restrictions do not apply if the rights are covered by a collective bargaining agreement, such as one with SAG-AFTRA, whose representation includes actors, performers, and recording artists.15
The rights do not expire upon the death of an individual and can be transferred by conveyance or by will or the laws of intestate succession.16 However, the initial period for such posthumous rights is ten years.17
This post-mortem right may be extended for additional five year renewal periods, provided that the rights holder demonstrates active and authorized use of the individual’s likeness during the last two years of the applicable period.18 The right survives until the end of the applicable period or, if continuously renewed, for up to seventy years after the individual’s death.19 The rights holder, such as an executor, heir, or licensee, may voluntarily register the post-mortem right by filing notice with the Register of Copyrights.20
Under the Act, individuals, companies, and online services, such as websites and online or mobile applications, would be held accountable for the distribution of unauthorized digital replicas. “Online services” are defined broadly; the definition includes search engines, advertising services or networks, e-commerce providers, and cloud storage services that have a registered designated agent with the Copyright Office.21
Claims can be asserted by a rights holder, which could include the individual or a licensee, or the heirs or successors of an individual or licensee.22 The rights under the NO FAKES Act extend to any individual or right holder, whether they died before or after the effective date of the act, as long as they are properly renewed within the seventy year posthumous rights period.23
A right holder can bring a civil claim to recover damages for violation of the digital replica rights, including the unauthorized public display, distribution, transmission, communication of, or the act of otherwise making available to the public a digital replica, or the distribution, transmission, or the act of making available a product or service that contains or produces a digital replica and has limited commercial significance other than the digital replica.24 This includes certain statutory damages or actual damages and profits as set forth below:
- In the case of an individual, US$5,000 per work embodying the applicable unauthorized digital replica;25
- In the case of a provider of an online service that has undertaken a good faith effort to comply with the takedown procedures, US$25,000 per work embodying the applicable unauthorized digital replica;26
- In the case of a provider of an online service that has not undertaken a good faith effort to comply with the takedown procedures, US$5,000 per display, copy made, or transmission in a sum of not more than US$750,000 per work embodying the applicable unauthorized digital replica and, in the instance of making a product or service available containing an applicable unauthorized digital replica, US$750,000 per work embodying the applicable unauthorized digital replica;27 and
- In the case of an entity that is not a provider of an online service, $25,000 per work embodying the applicable unauthorized digital replica;28 or
- Any actual damages suffered by the injured party as a result of the activity, plus any profits from the unauthorized use that are attributable to such use and are not taken into account in computing the actual damages.29
Injunctive or other equitable relief are also available, in addition to attorney’s fees and punitive damages if the prevailing party has proven that the defendant acted with malice, fraud, and, knowledge of willful avoidance of knowledge that the conduct violated the law.30
Responsibilities of Online Services Under the Act
The NO FAKES Act creates takedown procedure for online services that appears to be similar to that created for copyright claims under the DMCA, but there is some ambiguity on the scope of the immunity that is provided for compliance with those procedures. Section 2(d) of the Act provides that the provider of an online service shall not be liable for referring or linking to, or violating the act with respect to, user uploaded material if they comply with notice and take-down procedures “as soon as is technically and practically feasible for that online service” by removing access to authorized material and taking reasonable steps to notify both the right holder and the end user who uploaded the material that the content has been taken down.31 However, the remedies section of the Act suggests that online services could still be liable for reduced damages even if they comply in good faith with the takedown requirements, suggesting that the immunity is not absolute, but merely reduced.32 This seeming inconsistency may need to be clarified by amendment during the legislative process.
Online services will not be required to proactively monitor for future infringing content.33 Online services and other distributors of contact may also seek to employ advanced technology solutions to filter and analyze content to mitigate liability risks. Similar to copyright claims under the DMCA, the online services’ responsibility for user uploaded material begins upon receipt of a valid takedown notice.34
To take advantage of this safe harbor, online services must designate an agent with the Copyright Office to receive takedown notices, similar to the requirement under the DMCA.35 Online services must also have a policy to terminate repeat infringers.36 If online services fail to terminate an account holder in adherence to the policy, they may be subject to potential liability.37 In addition to removing the digital replicas, online services will be required to utilize digital fingerprinting technologies to prevent the same digital replica from being re-uploaded in the future and to terminate access to repeat infringers.38 Online services may also be subpoenaed to disclose identifying information of the alleged infringers.39
Additionally, no violation will be found if digital replicas are used in bona fide news, public affairs, or sports broadcasts where the digital replica is materially relevant.40 Digital replicas are also allowed in documentaries or another historical or biographical manner, so long as the replica does not give the false impression that it is authentic.41 Bona fide commentary, criticism, and other uses protected under the First Amendment are also permitted.42 Similarly, if the digital replica is used in advertisements for any of the protected uses mentioned and the replica is materially relevant work advertised, it is permitted.43
Notably, rather than following states’ choice to consider individual’s right to their digital likeness as a privacy right, the NO FAKES Act would treat individuals’ right to their digital likeness as an intellectual property right such that the immunity under the Communications Decency Act would not apply.44 Any immunity or reduced exposure can only be obtained with compliance with the takedown procedures in the NO FAKES Act.
State Legislation on Deepfakes
States have similarly proposed and enacted legislation prohibiting deepfakes. Since 2019, 130 bills have been enacted regulating deepfakes, with only forty-four bills including a private right of action.45 Twenty-five states have enacted laws regulating the use of deepfakes during elections.46 These laws largely regulate the use of deep fakes in political communications within a certain number of days prior to an election and the parameters around the use of disclosure statements.47 Likewise, thirty-four states have enacted laws regulating the creation and distribution of sexually explicit deepfakes.48 Eighteen of those states enacted laws addressing sexually explicit deepfakes of both child sex abuse material and nonconsensual material of adults.49 2025 has triggered an influx of legislation with 313 bills introduced and nineteen bills already enacted in the current session. Two important new laws in California went into effect in January: AB 2602, which aims to protect performers’ from unfair contracts that grant digital application rights without the performer’s informed consent,50 and AB 1836, which prohibits use of AI technology to create digital replicas of deceased individuals.51
State legislation has faced pushback, particularly with political deepfake bans. For example, in 2024, Judge John Mendez of the U.S. District Court for the Eastern District of California temporarily blocked the enforcement of California AB 283952 and AB 2655.53 AB 2839 would ban deepfakes in election communications within 120 days of an election,54 and AB 2655 requires online platforms to remove or label digitally altered content related to elections within a specified period.55 Among the challengers to AB 2655 was X Corp., a technology company owned by Elon Musk. Judge Mendez temporarily blocked both statutes due to First Amendment concerns.56 Now, X Corp. is currently challenging Minnesota’s deepfake ban, Section 609.771.57 The law imposes criminal penalties for distributing an unauthorized deepfake within ninety days before a party nominating convention, or after the state of early voting in general or primary elections.58 X Corp. is concerned about social media platforms criminal liability as well as the law’s censoring of political speech.59
Takeaways
If enacted, the NO FAKES Act will create a new set of rights and new set of obligations for individuals, companies and online services nationwide for responding to requests to takedown digital replicas that violate the right of publicity. Unlike Minnesota Section 609.771 and California AB 2839 and AB 2655, it does not specifically regulate election-related content, does not preempt any causes of action regulating election-related digital replicas,60 does not impose a duty to monitor on online services,61 and excludes protected First Amendment speech from claims.62 For this reason, the NO FAKES Act is less likely to face the same challenges that have been made to the Minnesota and California digital replica laws.
1 H.R. 2794, 119th Cong. (2025).
2 U.S. Copyright Off., Copyright and Artificial Intelligence: Part 1: Replicas (Jul. 2024) extension://efaidnbmnnnibpcajpcglclefindmkaj/https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-1-Digital-Replicas-Report.pdf
3 Id.
4 “Senators Coons, Blackburn, Reps. Salazar, Dean, colleagues reintroduce NO FAKES Act to protect individuals and creators from digital replicas,” Off. Of Chris Coons, https://www.coons.senate.gov/news/press-releases/senators-coons-blackburn-reps-salazar-dean-colleagues-reintroduce-no-fakes-act-to-protect-individuals-and-creators-from-digital-replicas.
5 H.R. 2794, 119th Cong. § 2(b)(2)(v) (2025).
6 U.S. Copyright Off., supra note 2 at 10.
7 U.S. Copyright Off., supra note 2 at 11.
8 Cal. Civ. Code § 3344.1.
9 U.S. Copyright Off., supra note 2 at 12-14.
10 Id. at 16.
11 H.R. 2794, 119th Cong. § 2(g) (2025).
12 H.R. 2794, 119th Cong. §2(a)(2)(A) (2025).
13 H.R. 2794, 119th Cong. §2(b)(2)(A) (2025).
14 H.R. 2794, 119th Cong. §2(b)(2)(B) (2025).
15 Id.
16 H.R. 2794, 119th Cong. §2(b)(2)(A)(ii) (2025).
17 H.R. 2794, 119th Cong. §2(b)(2)(A)(iii) (2025).
18 H.R. 2794, 119th Cong. §2(b)(2)(A)(iv)(II)(bb) (2025).
19 H.R. 2794, 119th Cong. §2(b)(2)(A)(v) (2025).
20 H.R. 2794, 119th Cong. §2(b)(2)(D) (2025).
21 H.R. 2794, 119th Cong. §2(a)(5) (2025).
22 H.R. 2794, 119th Cong. §2(b)(2)(A) (2025).
23 H.R. 2794, 119th Cong. §2(j) (2025).
24 H.R. 2794, 119th Cong. §2(e)(4) (2025).
25 Id.
26 This language seems inconsistent with the immunity granted in subsection (d) for following the takedown process. This will need to be clarified, but a possible interpretation is that there is no complete immunity, but penalties will be reduced if online services comply with takedown procedures. Id.
27 Id.
28 Id.
29 Id.
30 Id.
31 H.R. 2794, 119th Cong. §2(d) (2025).
32 H.R. 2794, 119th Cong. §2(e)(4) (2025).
33 H.R. 2794, 119th Cong. §2(h)(2) (2025).
34 H.R. 2794, 119th Cong. §2(c)(3) (2025).
35 H.R. 2794, 119th Cong. §2(c)(3) (2025).
36 H.R. 2794, 119th Cong. §2(d)(1)(B)(i) (2025).
37 Id.
38 H.R. 2794, 119th Cong. §2(d)(1)(B)(ii)(II)(aa) (2025).
39 H.R. 2794, 119th Cong. §2(f) (2025).
40 H.R. 2794, 119th Cong. §2(c)(5)(A)(i) (2025).
41 H.R. 2794, 119th Cong. §2(c)(5)(A)(ii) (2025).
42 H.R. 2794, 119th Cong. §2(c)(5)(A)(iii) (2025).
43 H.R. 2794, 119th Cong. §2(c)(5)(A)(v) (2025).
44 H.R. 2794, 119th Cong. §2(h)(1) (2025).
45 “AI Deepfake Legislation Tracker,” Ballotpedia, https://legislation.ballotpedia.org/ai-deepfakes/search?status=Enacted%2FAdopted&session=2025&session=2024&session=2023&session=2022&session=2021&session=2020&session=2019&page=1.
46 Id.
47 Id.
48 Id.
49 Id.
50 AB 2602 (2024).
51 AB 1836 (2024).
52 Kohls v. Bonta, 752 F.Supp.3d 1187 (E.D. Cal 2024).
53 Kohls, et. al v. Bonta, et. al, 2:24-cv-02527-JAM-CKD (E.D. Cal Jan. 3, 2025).
54 AB 2839 (2024).
55 AB 2655 (2024).
56 Kohls, et. al, supra note 53.
57 X Corp. v. Ellison, 0:25-cv-01649-JWB-ECW (D. Minn Apr. 23, 2025).
58 Minn. Stat. § 609.771 (2023).
59 X Corp., supra note 57.
60 H.R. 2794, 119th Cong. § 2(g) (2025).
61 H.R. 2794, 119th Cong. §2(h)(2) (2025).
62 H.R. 2794, 119th Cong. §2(c)(5) (2025).
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