A deep dive into the proposed U.S. federal law creating a "Digital Replication Right" to protect against AI deepfakes.

The rise of generative Artificial Intelligence (AI) has presented the creative industries with a profound challenge: how do you protect an individual’s identity—their voice, face, and likeness—when AI can replicate it instantly and perfectly? The ability to clone a celebrity's voice for an unauthorized song, or use a politician's image in a deceptive video, has created a regulatory vacuum.

In the United States, the primary legislative answer to this question is the **Nurture Originals, Foster Art, and Keep Entertainment Safe Act**, commonly referred to as the **NO FAKES Act**.

What is the NO FAKES Act?

The NO FAKES Act is a proposed bill aimed at creating a **federal right of publicity** designed specifically to combat unauthorized digital replicas (deepfakes). The legislation seeks to provide a unified, nationwide legal standard where currently only a patchwork of varying state-level laws exists. [2]

Defining the 'Digital Replica'

The bill focuses on the term **"digital replica,"** which it defines as a newly created, computer-generated, highly realistic electronic representation that is **readily identifiable** as the voice or visual likeness of an individual, and in which the actual individual did not actually perform or appear. [1]

Crucially, this definition covers the exact controversies recently seen in the music industry:

• AI-generated **songs** that mimic a sound recording artist’s voice (e.g., the unauthorized "Drake" and "The Weeknd" tracks).
• Deepfake **images or videos** used in advertisements or misleading content without the person's consent.

The Core Concept: A Digital Replication Right

The most important legal innovation in the NO FAKES Act is the creation of a new, exclusive **"digital replication right"** for every individual. This property right allows an individual (or their right holder) to authorize—or prevent—the use of their voice or visual likeness in a digital replica. [1]

Key Characteristics of the Federal Right

This right is distinct from other legal protections:

• Property Right: It is established as a property right, which provides a strong basis for seeking high statutory damages.
• Non-Assignable During Life: While the individual is living, the right **cannot be sold** outright, ensuring the person maintains ultimate control over their identity. However, it **can be licensed** for a specific term (up to 10 years). [1]
• Post-Mortem Protection: The right does not expire upon the individual's death. It is transferable and licensable by the deceased individual's estate for a period that can extend for **up to 70 years** after their passing, provided the right is actively renewed. [1]

Key Provisions: Liability and Staydown

The bill is designed to hold both the bad actor who creates the deepfake and the platform that hosts or distributes it accountable, using an approach that exceeds the standards of existing laws.

Primary Liability for Unauthorized Use

Individuals or companies can be held liable if they knowingly or willfully produce, publish, or distribute a digital replica without the right holder's consent. Penalties can be severe, reaching up to **$750,000 per work** embodying an unauthorized digital replica. [3]

The Strict "Notice-and-Staydown" System

The Act imposes significant obligations on online service providers (streaming sites, social media, app stores) through a system that goes beyond the standard **Notice-and-Takedown** model of the DMCA.

This system is designed to combat serial infringement by making platforms responsible for continuous filtering. [3]

Copyright vs. The Right of Publicity

A central concept of the NO FAKES Act is that it creates a new **Right of Publicity** rather than amending existing **Copyright Law**. These two concepts protect fundamentally different things:

• Copyright: Protects **original works of authorship** that are "fixed in a tangible medium" (e.g., the recording of a song, the script of a film, a novel). It incentivizes the creation of new works.
• Right of Publicity: Protects an **individual's identity** (name, voice, likeness, image) from unauthorized commercial exploitation. It is designed to allow individuals to profit from their own fame and control their personal brand. [4]

Controversies and Criticisms

The NO FAKES Act is highly controversial, facing significant opposition from free speech advocates, technology developers, and some creative communities.

1. Threats to Free Expression (First Amendment)

Critics argue that the First Amendment exceptions for commentary, criticism, and satire are too narrowly defined. [5]

• **The "False Impression" Trap:** The exceptions vanish if the work creates a **"false impression"** of authenticity or endorsement. This makes any realistic AI-generated recreation—even those used for transformative purposes like deepfake satire—legally risky.
• **Chilling Effect:** Creators (like documentary filmmakers or artists) may self-censor or abandon projects that rely on AI recreation of a public figure's likeness rather than face costly litigation with a celebrity estate. [5]

2. Over-Censorship and Platform Liability

The strict **Notice-and-Staydown** requirement is criticized for inevitably leading to over-removal of lawful content.

• **Filters are Imperfect:** Automated filters designed to prevent re-upload are known to be error-prone, flagging legitimate content (false positives). [3]
• **Lack of Counter-Notice:** Unlike the DMCA, the bill lacks a robust counter-notice mechanism for users to easily restore wrongfully removed content, effectively giving the rights-holder a "heckler's veto."

3. Protecting the Famous, Not the Average Citizen

Opponents claim the bill is primarily designed to protect the **commercial value** of celebrities and public figures, not the privacy or reputation of ordinary individuals. [6]

• **Property Right Focus:** Framing the right as a property right ensures the financial value accrues to estates and corporations for decades, rather than focusing on the psychological harm of deepfake abuse.

Conclusion

The NO FAKES Act represents an important and complex legislative attempt to provide foundational identity protection in the AI age. By creating a unified federal Right of Publicity, it directly addresses the unauthorized use of digital replicas that state laws and existing copyright cannot fully cover. However, its strict enforcement mechanisms and vague First Amendment exceptions have placed it at the center of a national debate over the future of free expression and digital creativity.

References & Further Reading

1. Text - S.1367 - 119th Congress (2025-2026): NO FAKES Act of 2025 | Congress.gov.
2. NO FAKES Act one-pager - Senator Chris Coons.
3. The Real Costs of the NO FAKES Act - CCIA.
4. Right of Publicity - International Trademark Association (INTA).
5. The NO FAKES Act is a real threat to free expression - FIRE.
6. Congress Should Just Say No to NO FAKES - Electronic Frontier Foundation (EFF).