Senate Holds Hearing on Ways to Improve Draft Digital Replica Bill

By Jennifer E. Rothman
May 1, 2024

Yesterday, April 30, 2024, the U.S. Senate Judiciary Committee’s Subcommittee on Intellectual Property’s held a hearing on “The NO FAKES Act: Protecting Americans from Unauthorized Digital Replicas.” This was a follow-up to a prior Senate subcommittee hearing on AI which nominally focused on copyright law, but largely raised the issue of personality rights. The Senate hearing is also a companion to the broader House hearing on how to address AI and Identity Rights, at which I testified.

The focus of the Senate hearing, more so than in the House, was on the specific discussion draft that had been circulated last Fall by Senator Coons titled the No FAKES Act. There was a lot of agreement among witnesses, but also significant areas in which those testifying seemed far apart from one another on a series of crucial issues related to the drafting of the legislation. Notably, there was significant movement on the issue of transferability of rights for the living, with all but one witness agreeing that wholesale transfers of a person’s right to their own name, likeness, and voice should not be permitted, and that any licensing should have significant limits. The boundaries of those limits differed but this is a crucial and important shift because, as I and others have observed, such transferability and broad licensing works at cross-purposes with all of the stated objectives of this legislation and jeopardizes the most basic rights and freedoms of a person.

The witnesses, in order of appearance, were Robert Kyncl (CEO of Warner Music Group), FKA twigs, (aka Tahliah Debrett Barnett, a London-based singer, songwriter, producer, dancer and actor), Duncan Crabtree-Ireland (National Executive Director and Chief Negotiator for SAG-AFTRA), Ben Sheffner, (Senior Vice President and Associate General Counsel of the Motion Picture Association), Graham Davies (President and CEO of the Digital Media Association), and Lisa Ramsey, (Professor of Law at the University of San Diego). The Senators who spoke at the hearing were Chairman Coons, Ranking Member Tillis, Sen. Hirono; Sen. Blackburn, Sen. Blumenthal, and Sen. Klobuchar.

Given the two-hour hearing, which is accessible online along with the written statements of the witnesses, I think it will be most useful to summarize the areas of agreement and disagreement that arose during the hearing. I will then conclude with some suggestions for going forward that hopefully mediate the many interests at the table and those of the broader public who will also be affected by this legislation and whose interests should also be at the forefront as Congress works to improve this draft bill and the No AI FRAUD Act in the House.

Areas of Agreement

The ability of generative AI to mimic, clone, or replicate a real person’s voice and image poses a significant threat. Every witness and every Senator who spoke agreed that digital replicas and voice cloning are a problem. Some thought this threat was existential for actors and recording artists. All agreed that the problem was bigger than uses affecting performers or solely about commercial harms. Ordinary people too have been victims of deceptive and unauthorized pornographic AI outputs and of scams using voice clones claiming to be loved ones in trouble. Politicians too have been animated doing and saying things they never did in ways that threaten democracy. There was a dispute among witnesses about whether current law was adequate to address these problems, but at least some of the witnesses and several Senators thought time was of the essence and that federal legislation was essential. Accordingly, regardless of whether current law addresses these issues, there seems to be momentum for federal legislation. I note that since my testimony in February, the proliferation of state bills and laws trying to address AI and particularly the problem of digital replicas makes it more urgent that Congress pass a preemptive digital replica bill because the current conflicting and different state-by-state approach is not sustainable.
Federal Law Should have Preemptive Effect. All witnesses who addressed the question suggested the need for the federal law to preempt a confusing and conflicting set of state laws. The alignment of the recording industry, tech platforms, movie industry, and academic witness around this issue is a shift from prior discussions. There was a recognition that if Congress can get this right, at least as to a narrow digital replica law, preemption would be essential and helpful to performers, content creators, tech companies, and the general public as well.
The First Amendment Protects Some Uses of Digital Replicas and Generative AI. All witnesses agreed that AI was a powerful tool and noted that the First Amendment would protect some uses. FKA twig even noted that she created a digital replica of herself which could speak in different languages. Differences focused on whether specific exemptions should be included in the legislation, and if so what they should be, a topic to which I will return in the “disagreement” section.
Largely Agreement that Transfers Should be Prohibited and Licenses Significantly Limited for the Living. With the exception of the witness for Warner Music Group, Ryan Kyncl, all witnesses strongly endorsed both limits on transferability and on the scope of licensing or did not address the issue.

Graham Davies said any rights to a person’s voice or likeness were “inextricably tied the person,” who for the duration of their lifetimes should be the only ones who control how their voices and likenesses are used by others.

Duncan Crabtree-Ireland while calling for postmortem transferability, staked out a new position for SAG-AFTRA, suggesting that broad licensing of the digital replicas of the living was indeed concerning. He said he did not want his members or anyone else subject to “indentured servitude” by such transfers or licenses. He suggested that an outer limit of seven years, similar to California’s limits on employment contracts, should be used for licensing agreements related to digital replicas. He powerfully harkened back to Olivia de Havilland’s heroic stand against the movie studios that had kept her locked in an onerous contract and blocked her from taking roles she wanted with other studios. (I talk about her successful efforts in my book, The Right of Publicity).

FKA twigs powerfully argued that her spirit and brand, and her voice and likeness are hers alone and do not “belong to anyone else.” Although she wanted her record label to help her police unauthorized uses she thought that she was the only one who should have the ultimate control of herself as a “human being.” She thought any bill should “put power in the hands of artists.”

Professor Lisa Ramsey said any digital replica right or a federal right of publicity should not be transferable away from the person upon whom the rights are based. She also convincingly contended that licensing should be limited to uses for “specific performances” so as not to conflict with the goals of the legislation. In particular she suggested such a limit was essential to protect employment opportunities for the living and to prevent confusing the public with unauthorized performances (that are only nominally “authorized” by blanket, long-term licenses). She warned that allowing unlimited licensing even with legal representation or union oversight could even worsen the dissemination of nonconsensual pornography given that others would have broad rights over another person’s voice and likeness. She particularly noted that artists who are just starting out may sign overly broad licensing agreements—even with counsel—and then have little say in how their digital replicas are used, including in sexually explicit ways, going forward.

The only outlier on this issue of transferability was the representative for the recording labels, Robert Kyncl, who said that the digital replicas “needed to be transferable” and that record labels would like to include provisions for such transfers in their recording contracts with artists. But in answering questions he suggested that artists should decide whether they want to transfer such rights. Both Kyncl and FKA twigs agreed that it is helpful for record labels to be able to protect against unauthorized third-party uses of their artists’ identity using voice clones or other digital replicas. If this is the key concern it can easily be addressed without requiring transfers of rights or overly broad licenses, as I will note in my recommendations below.

Areas of Disagreement

While there was more alignment among the witnesses than I have previously seen, there were many areas of disagreement, especially as things got more specific. This will make amendments to the bill challenging, but I think not insurmountable.

Free Speech and Exemptions. There were differences in witnesses’ views about the scope of First Amendment protection. Outside of false or misleading commercial speech, fraud, or uses in obscenity, Ben Sheffner, the motion picture representative, and Lisa Ramsey, the intellectual property and First Amendment expert, contended that strict scrutiny should apply and that many uses of digital replicas would be protected by the First Amendment. Other witnesses disagreed. Sheffner, Ramsey, and Davies thought exemptions and safe harbors were essential to prevent a chilling effect and to ensure that creative works and innovation have the breathing room they need to flourish. Other witnesses thought there should be no exemptions and thought that First Amendment defenses were for the “courts” to determine.

Third-Party Liability. Davies, who represents music streaming services, spoke more broadly about platform liability, contending that only “creators” of infringing or wrongful content should be liable and that there should be a safe harbor for platforms. When asked by several Senators about their thoughts on notice and takedown, most witnesses suggested that this might be a reasonable approach; while voicing some concerns with the DMCA approach, they viewed that as better than some alternatives. Notably, both Kyncl, the music industry witness, and Davies, the platform representative, highlighted that technological solutions and partnerships are essential. This is spot-on. Whatever law gets passed (and whatever the many laws we have that already exist in this area), there will still be a whack-a-mole and enforcement problem. So technological solutions are essential and likely to be the most successful in addressing some of the most concerning uses of generative AI that use others’ voices and likenesses.

Postmortem Rights. There was a split among the witnesses about whether a digital replica right should exist after a person dies. Sheffner thought they should not and pointed out that there was no justification presented for extending such rights and that doing so did not further the stated objectives of the legislation. Disagreeing with this view was Kyncl, Crabtree-Ireland, and FKA twigs, all of whom thought such rights should exist after death. FKA twigs expressed the view that she wanted her legacy preserved by her family, largely rooting the right in personality, rather than a financial boon. This comports with my thinking in my most recent forthcoming paper about postmortem privacy rights. (Anita Allen & Jennifer Rothman, Postmortem Privacy, forthcoming in Michigan Law Review (2024).) Along these same lines, Crabtree-Ireland suggested in Q & A that these rights should not be owned by a corporation but should vest in living heirs. Ramsey suggested that perhaps postmortem rights should only exist to the extent they prevent pornographic or deceptive uses of a deceased loved one. The terms proposed varied from thinking the proposed 70 years was too short (Crabtree-Ireland thought the rights should be perpetual) to thinking it was far too long (Sheffner pegging the appropriate duration at zero). Ramsey noted several forthcoming papers on this topic, including my own, and one by Mark Bartholomew (A Right to be Left Dead, forthcoming in the California Law Review), in which he suggests a 20-year postmortem digital replica right.

Limits on Licensing. Although with the exception of Kyncl, the witnesses opposed transferability and called for limits on licensing, there was disagreement about what appropriate limits on licensing would be. Everyone agreed that a person should be able to issue licenses and profit from uses of their voice and likeness, but witnesses disagreed about whether there could be broad licenses with durational limits, say of 7 years, or whether such licenses needed to be limited to specific performances only, as Ramsey called for. To the extent there were broader licenses, Ramsey thought the duration should be much shorter, no more than one to five years, and should still identify specific uses rather than provide a carte blanche for any unsupervised uses during this time period.

Thoughts for Moving Forward

As Senator Coons and the other co-sponsors of the No FAKES Act move forward with revising the discussion draft, I have some recommendations based on the hearing.

Preempt State Laws. By focusing the target of the bill on digital replicas, preemption will not unsettle longstanding laws but instead address the proliferation of conflicting state laws and provide clear protection for performers and ordinary people, while also providing clear and consistent guidance for platforms and content creators.
Bar Transferability and Limit Licensing for the Living. Given the dominant (and essential) view that other people and corporations should not own a living person’s voice and likeness, transfers should be prohibited, and this prohibition should have a preemptive effect on any state laws to the contrary. Licensing must also be significantly limited so it does not have the same effect as a transfer. This is necessary to protect the livelihoods and freedom of performers and ordinary people alike, as well as to combat public deception. Limiting licenses to specific performances or requiring authorization for specific performances even during an exclusive licensing period is essential. At a minimum, no exclusive licensing agreement covering a person’s name, voice, or likeness should exceed 7 years, but given the breadth of a digital replica right the terms should likely be far shorter and require specific approval of each performance even if exclusivity is enforced during a longer term. While adding requirements of representation by counsel or a collective bargaining union are helpful, they fall far short of providing the needed protection. It is challenging for actors, recording artists, or student-athletes, among others—even when represented by counsel—to negotiate their first deal and they often have been held to very onerous terms.
Standing to Enforce Rights. Given the importance of prohibiting transfers and limiting the scope of licensing of a person’s voice and likeness, as well as the need for record labels and other representatives to facilitate the policing and enforcement of these rights, explicit provision for allowing additional designated individuals to enforce these rights (subject to limited terms, per the earlier suggestion) could be made. Licensees should be able to enforce such rights during the terms of their licenses without need for such a provision, but making this explicit could provide clarity and be in keeping with recent Supreme Court jurisprudence. Also, the statute could provide such enforcement representation rights without requiring such parties to be licensees so long as they are specifically authorized (with limits) to do so by the underlying person.
Exceptions from Liability. Given the concerns about broad liability for those without knowledge of the wrongful conduct, liability should be limited to those with specific knowledge of the infringing/wrongful conduct. A notice and takedown (and putback) procedure is not perfect, but it may be the best option to swiftly take down wrongful material with some process for mediating disputes over whether the material is in fact in violation of the law. Specific speech-protective exemptions should be retained and fine-tuned in the bill. They help provide clarity, limit litigation, and prevent chilling fully-protected speech. Such exemptions would also help limit the clash with copyright law of such a digital replica right, particularly when uses are derived from copyrighted works that a defendant holds the copyright to or to which it is a licensee. Exemptions should allow, for example, for the sort of limited, nonexploitative digital reanimation used in works like Forrest Gump (mentioned by Sheffner during the hearing), use of visual effects, and remastering of existing works. Uses that substitute for hiring the living person to perform or that are deceptive should not be exempted from liability.
Postmortem Rights. I think it would be wise to separately consider postmortem rights at the federal level and move forward with digital replica rights for the living first and then separately take up a postmortem provision. This would allow the necessary and more in-depth targeted discussion of the objectives of such a postmortem term, including the appropriate duration for such a new right. In lieu of this, any postmortem right should be limited to being held by natural persons that are either the decedent’s designated heirs or that follow intestacy laws so that there can be meaningful stewards of the legacy of the dead. In addition, any postmortem provision must address the forced commercialization problem caused by federal estate tax laws and protect against elder abuse. (See Who Owns You When You are Dead?) The goal of a postmortem right should not be to generate a massive lucrative market in dead people, largely profiting companies who trade in the dead and diverting work from the living, but instead, as the witness FKA twigs advocated, should be to protect an artist’s legacy and dignity, and their family’s well-being in the aftermath of a person’s death. ( See also Anita Allen & Jennifer Rothman, Postmortem Privacy, forthcoming in Michigan Law Review (2024).)

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Overall, there was a lot of positive discussion during the hearing and openness and appetite from both the Senators and witnesses to get this right. As FKA twigs said, in her concluding statement, “Put the power in the hands of the artists.” We should do this more broadly and put the control over our own voices and likenesses in each of our hands so that no one can “put words in our mouths” or force us to do or say things we never did. Our democracy, our livelihoods, and the notions of truth and authenticity themselves hang in the balance. Only the person whose own voice or likeness is at issue should be able to authorize uses of their identities and we must each have ongoing control and supervision of our digital replicas. Hopefully, the next iteration of the No FAKES Act or No AI FRAUD Act will get us there.

Alienability