Overview Of The U.S. Copyright Office's AI Digital Replicas ("deepfakes") Report

Daren Orzechowski, Alex Touma, and Jack Weinert examine Part 1 of Artificial Intelligence Report on Digital Replicas, published by the U.S. Copyright Office on July 31, 2024.

Background:

In the first quarter of 2023, the U.S. Copyright Office (the "Office") announced an initiative to examine copyright issues relating to artificial intelligence ("AI"). In March of 2023, the Office published a Policy Statement to clarify its practices for examining and registering works that contain material generated by the use of AI.

After consultation with numerous industry stakeholders to better understand how AI is used, the copyright issues arising out of such use, and its impact, the Office published the August 2023 Notice of Inquiry (the "Notice of Inquiry"). The Notice of Inquiry formally sought public input on the full range of the copyright issues that had been raised during the consultation process. Over 10,000 comments were received by December 2023.¹As part of its examination of the issues related to copyright and AI, the Office was to issue a Copyright and Artificial Intelligence report, to be published in several Parts, with its findings and recommendations. On July 31, 2024, the Office published Part 1 of that report, which examines legal and policy issues related to digital replicas (the "Report").² Additional Parts, which address different topics (e.g., the copyrightability of works created using generative AI, training of AI models on copyrighted works, licensing considerations, and allocation of any potential liability), will be published in the future.³

Digital Replicas:

This Report uses the term "digital replica" to refer to a video, image, or audio recording that has been digitally created or manipulated to realistically but falsely depict an individual (also known as a "deepfake"). A "digital replica" may be authorized or unauthorized and can be produced by any type of digital technology, not just AI. The terms "digital replicas" and "deepfakes" are used interchangeably.⁴

Sections of Report:

Section I of the Report: Context and history of the Office's study of the digital replicas issue.
Section II.A. of the Report: Outline of the main existing legal frameworks: state rights of privacy and publicity, including recent legislation specifically targeting digital replicas, and at the federal level, the Copyright Act, the Federal Trade Commission Act, the Communications Act, and the Lanham Act.
Section II.B. of the Report: Analysis of whether the existing legal frameworks provide sufficient legal redress for those harmed by unauthorized digital replicas, and a proposal for the adoption of a new federal law.
Section III. of the Report: Discussion of the protection against AI outputs that deliberately imitate an artist's style, including whether there are, or should be, protections against AI systems generating outputs that imitate artistic style.

Assessment of Risks from Digital Replicas

As a result of the feedback provided as part of the Notice of Inquiry, research undertaken by the Office, and consultation with other government agencies, the Office concluded that:

the distribution of unauthorized digital replicas has the potential to cause a broad range of harm, including lost income, displacement of human labor, loss of authenticity and creativity, spread of misinformation, and production of unlawful sexually explicit material;⁵
existing legal frameworks do not adequately protect against these harms;⁶ and
a new federal law that protects all individuals from the knowing distribution of unauthorized digital replicas is urgently needed.⁷

Key Recommendations:

After analyzing whether the existing legal frameworks provide sufficient legal redress for those harmed by unauthorized digital replicas, the Office recommended that Congress should: "enact a new federal law that protects all individuals from the knowing distribution of unauthorized digital replicas."⁸

In addition to this recommendation, the Office proposed nine (9) recommendations, which are set forth below, on the elements to be included in such new federal law.⁹

Recommendation	Summary of Recommendation
Subject Matter	The statute should target those digital replicas, whether generated by AI or otherwise, that are so realistic that they are difficult to distinguish from authentic depictions. Protection should be narrower than, and distinct from, the broader "name, image, and likeness" protections offered by many states.
Persons Protected	The statute should cover all individuals, not just celebrities, public figures, or those whose identities have commercial value. Everyone is vulnerable to the harms that unauthorized digital replicas can cause, regardless of their level of fame or prior commercial exposure.
Term of Protection	Protection should endure at least for the individual's lifetime. Any postmortem protection should be limited in duration, potentially with the option to extend the term if the individual's persona continues to be exploited.
Infringing Acts	Liability should arise from the distribution or making available of an unauthorized digital replica, but not the act of creation alone. It should not be limited to commercial uses, as the harms caused are often personal in nature. It should require actual knowledge both that the representation was a digital replica of a particular individual and that it was unauthorized.
Secondary Liability	Traditional tort principles of secondary liability should apply. The statute should 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.
Licensing and Assignment	Individuals should be able to license and monetize their digital replica rights, subject to guardrails, but not to assign them outright. Licenses of the rights of minors should require additional safeguards.
First Amendment Concerns	Free speech concerns should expressly be addressed in the statute. The use of a balancing framework, rather than categorical exemptions, would avoid overbreadth and allow greater flexibility.
Remedies	Effective remedies should be provided, both injunctive relief and monetary damages. The inclusion of statutory damages and/or prevailing party attorney's fees provisions would ensure that protection is available to individuals regardless of their financial resources. In some circumstances, criminal liability would be appropriate.
Relationship to State Laws.	Given well-established state rights of publicity and privacy, the Office does not recommend full federal preemption. Federal law should provide a floor of consistent protection nationwide, with states continuing to be able to provide additional protections. It should be clarified that section 114(b) of the Copyright Act does not preempt or conflict with laws restricting unauthorized voice digital replicas.

The Office noted that "[a]s with all of the Copyright Office's studies, [the Office's] analysis is guided by the Constitutional goal of promoting creativity in order ultimately to benefit the public. This requires an appropriate balance, enabling technology to move forward while ensuring that human creativity continues to thrive. It is [the Office's] hope that [the] Report will further productive discussions in Congress, the courts, and the executive branch, to help achieve that balance."¹⁰

Conclusion

The Office's examination of copyright and AI issues and this Report were initiated as part of a broader response to President Biden's landmark AI Executive Order, made in October 2023, that advanced a coordinated, federal government-wide approach toward the safe and responsible development of AI. For further information, refer to our prior blog post here.

Footnotes

1 https://www.copyright.gov/ai/

2 https://www.copyright.gov/newsnet/2024/1048.html

3 Report, page 3.

4 Report, page 29.

5 Report, Part I, Section A, pages 2-6.

6 Report, Part II, Section B, pages 23-24.

7 Report, Part IV, page 57.

8 https://www.copyright.gov/newsnet/2024/1048.html.

9 Report, Executive Summary, pages iv-v, as further discussed starting on page 22.

10 Report, Foreword from the Register of Copyrights.

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