Today, the Senate Judiciary Committee Intellectual Property Subcommittee held a hearing on the “Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act.” The bill proposes creating a broad right of publicity that would address the very real problem of digital impersonation by prohibiting most unauthorized uses of another person’s voice or likeness.
This is a serious and imminent danger for many Americans, particularly those who are already marginalized or at heightened risk of online abuse. However, Public Knowledge contends that many of the bill’s provisions – including 70 years of postmortem protection, unclear secondary liability, and no discussion of non-consensual intimate imagery – prioritize the entertainment industry and its concerns at the expense of the overwhelming majority of people the bill allegedly protects.
The following can be attributed to Meredith Rose, Senior Policy Counsel at Public Knowledge:
“This bill claims to protect all Americans, yet the only voice we heard today is the entertainment industry’s. In 2022, the entertainment, arts, and recreation industry together employed 4.4 million people, the overwhelming majority of whom do not commercially license their voice or likeness. That leaves more than 329 million Americans covered by this bill whose concerns and fears have been tossed aside. They are more than D-list celebrities; they are private individuals facing different risks. Representatives for less than 1% of the population are steering policy that will radically reshape the rights and futures of the other 99%, and at no point did Congress think this might be a problem.
“The 99% of Americans who do not commercially license their voice or likeness are not an afterthought; they are children, victims of non-consensual intimate imagery, individuals at risk of being defamed, and marginalized groups vulnerable to attack. They face real, daily harms that are, frankly, more important than whether or not a major record label can trot out a holographic Michael Jackson for another 60 years. And yet, Congress would rather legislatively categorize private citizens as D-list celebrities rather than hear their voices and address their needs directly.
“What do the rest of us need? We need safe and effective tools to remove non-consensual deep fakes, particularly non-consensual intimate imagery; meaningful guardrails to prevent suppression of legitimate speech and bad faith take-downs; reasonable postmortem terms; and automatic reversion of rights so that individuals cannot be snookered into signing away their likenesses for the remainder of their natural lives – and beyond.
“This hearing – and the industry capture of this process – is an affront to every American concerned about how their image or voice may be used to nefarious ends. It’s time Congress step up and refocus its attention where it needs to be: the rest of us.”
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