U.S. Copyright Office Recommends the Creation of a Federal Right to Protect Individuals from the Knowing Distribution of Unauthorized AI-Generated Impersonations

On July 31, 2024, the U.S. Copyright Office issued the first section of its much-anticipated policy report regarding artificial intelligence and copyright. This section concerns the use of AI to create unauthorized images or recordings that impersonate others by mimicking their voice or visual likeness—also known as “deepfakes” or “digital replicas”—such as AI-generated musical performances and robocall impersonations of political candidates.

Finding that new federal legislation is “urgently needed,” the Copyright Office recommends that Congress establish a federal right to protect all individuals during their lifetimes from the knowing distribution of unauthorized digital replicas. Existing state laws, according to the Copyright Office, are inconsistent and insufficient to address harms that can be inflicted by noncommercial uses of AI-generated images and recordings. Specifically, the Copyright Office recommends that an individual’s federal right should be:

• Licensable, subject to guardrails, but not assignable,
• With remedies including monetary damages and injunctive relief, and
• Not preemptive of state laws.

In addition, the Copyright Office recommends that the statute be balanced with First Amendment considerations and include a safe harbor mechanism that incentivizes online service providers to remove unauthorized digital replicas after receiving effective notice or otherwise obtaining knowledge that they are unauthorized.

The Copyright Office does not recommend including “style” as protected subject matter under a federal digital replica law at this time.

Takeaway

The Copyright Office’s recommendations come at a time when Congress is considering multiple proposals to address the use of unauthorized digital replicas in various contexts. For example, the No Artificial Intelligence Fake Replicas and Unauthorized Duplications (“No AI FRAUD”) Act, and the discussion draft of the Nurture Originals, Foster Art, and Keep Entertainment Safe (“NO FAKES”) Act of 2023, would each establish a federal framework for protecting against the use of unauthorized digital voice replicas and digital depictions that readily identify an individual. Other legislative proposals include the REAL Political Advertisements Act, which would require political advertisements to disclaim the use of AI-generated sounds or images; the Protect Elections from Deceptive AI Act, which would make it a crime to distribute deceptive AI-generated media relating to federal elections; and the Preventing Deepfakes of Intimate Images Act, which would make it a crime to intentionally disclose or threaten to disclose AI-generated intimate digital depictions.

These legislative proposals would have implications for individuals, creators, and online service providers alike, and the Copyright Office’s recommendations may influence if and when any of them are enacted.