Federal Lawmakers Reintroduce NO FAKES Act To Combat Unauthorized Digital Replicas

In early April 2025, a bipartisan group of U.S. Senators reintroduced the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act, signaling renewed momentum for federal legislation addressing the rise of unauthorized digital replicas powered by artificial intelligence. First introduced in draft form in late 2023 and formally in 2024, the Act aims to establish a federal framework protecting individuals' rights concerning their voice and visual likeness, particularly concerning AI deepfakes (computer-generated, highly realistic electronic representations) that are readily identifiable as an individual's voice or visual likeness. The primary goal is to create a specific federal intellectual property right, akin to a right of publicity, granting individuals control over how realistic, AI-generated versions of themselves are created and used, thereby tackling the growing challenge of unauthorized digital replicas.

The NO FAKES Act establishes a federal right for individuals and right holders to authorize the use of their voice or visual likeness in a digital replica or in connection with certain products or services. The Act aims to replace the current, often inconsistent patchwork of state-level right of publicity laws, which create complex compliance challenges, especially for creators and platforms. It establishes liability for the public display, distribution, transmission, or communication of unauthorized digital replicas, and for distributing or making available certain products or services designed for such replicas. The Act grants this right to the individual and any other individual or entity that has acquired it through a license, inheritance, or other legal means. This right extends beyond the individual's lifetime, with specific provisions addressing transfer and licensing of the right after death.

To balance individual rights, online platform operations, and First Amendment considerations, the NO FAKES Act uses a Digital Millennium Copyright Act (DMCA)-style framework. It includes safe harbor provisions for online services that comply with a notice-and-takedown system, requiring the removal of unauthorized replicas upon notification. To qualify for safe harbor, platforms must also have a policy for terminating repeat violators. The Act clarifies that platforms generally have no duty for online services to proactively monitor for digital replicas but must implement digital fingerprinting to prevent re-uploads.

Finally, it is important to note that the rights established under the NO FAKES Act generally preempt related state laws, except for causes of action under state law that were in existence as of January 2, 2025, or state statutes specifically regulating digital replicas depicting sexually explicit conduct, election-related digital replicas, or certain products or services capable of producing digital replicas.

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