Real or Fake? The NO FAKES Act Cracks Down on Unauthorized AI-Generated Content

Emma AistropNews & Insights

Artificial intelligence (“AI”) is quickly becoming ubiquitous across industries, with some generative AI systems reaching more than 100 million users this year alone.[1] In particular, the music industry benefits from using AI software, which can quickly analyze and synthesize extensive amounts of data to create new music.[2] However, unauthorized digital music presents new legal challenges because current intellectual property laws do not address AI-generated content.[3] For example, the viral song “Heart on My Sleeve” disrupted the music industry when people learned that it was actually an AI-generated replica of Drake and The Weeknd’s voices.[4] In response to these concerns, senators Marsha Blackburn (R-TN), Chris Coons (D-DE), Amy Klobuchar (D-MN), and Thom Tillis (R-NC) introduced draft legislation of the Nurture Originals, Foster Art, and Keep Entertainment Safe (“NO FAKES”) Act.[5] If passed, the NO FAKES Act would be the first law to provide federal protection against the unauthorized use of one’s likeness through generative AI.[6]  

Currently, individuals must rely on state laws for protection against unauthorized uses of their persona. This “right of publicity” allows individuals to take legal action against the misappropriation of their name, likeness, and identity.[7] Even though state statutes do not provide a legal definition for “likeness,” courts have historically protected an individual’s appearance, mannerisms, and gestures.[8] Courts have also protected other identifiers such as an individual’s voice, signature, and photograph.[9] However, an individual must demonstrate that his or her public image is “commercially valuable”to receive legal remedies.[10] Moreover, monetary damages vary by state. For instance, California permits $750 in statutory damages per violation, while Tennessee law permits up to three times that amount in actual damages.[11] Finally, each state sets the number of years applicable to a deceased individual. For example, in California, a person’s right of publicity extends 70 years following the individual’s death and can be enforced by their successor in interest.[12]  

The NO FAKES Act would create national uniformity for protecting an individual’s persona, and it would specifically address digital duplications. Indeed, the Act protects “the voice and visual likeness of all individuals from unauthorized recreations from generative artificial intelligence.”[13] Additionally, the Act holds both individuals and companies liable if they produce unauthorized digital replicas, and it holds platforms liable for knowingly hosting unauthorized AI-generated copies;[14] although the Act does exclude Constitutionally protected digital replicas, such as the news, sports broadcasts, and documentaries “for purposes of comment, criticism, or parody.”[15] The Act also allows individuals to license their digital replica rights as long as the individual is represented by counsel.[16] This deviates significantly from the right of publicity, where courts have held that identities can be licensed and alienated without the presence of an attorney.[17] Lastly, the Act provides post-mortem rights.[18] Individuals have up to three years after the violation to file suit,[19] and statutory damages consist of $5,000 per violation or any damages suffered by the injured party (whichever is greater).[20] The Act institutes a separate legal remedy for AI-powered voice cloning, like that featured in “Heart on My Sleeve.”[21]

Moreover, the NO FAKES Act would address current limitations with copyright law. To sue for copyright infringement under the current law, the copyright owner must that show that “(1) the defendant had access to the original work, and (2) the two works are substantially similar.”[22] Additionally, only human creations are protected by copyright law. [23] As such, AI-generated music is excluded from copyright protection, placing the burden of removing unauthorized content on individual music labels. For example, even though “Heart on My Sleeve” was an original song, YouTube removed the video from its platform due to a copyright claim by Universal Music Group (“UMG”). [24] In justification of its claim, UMG asserted that “[platforms] have a fundamental legal and ethical responsibility to prevent the use of their services in ways that harm artists.”[25] While it appears UMG was able to leverage its power in the industry to get the video removed, lesser-known labels and artists may find it more difficult to remove their content on a copyright claim.  

On the other hand, this Act may pose problems for other industry players, like hosting platforms. The No FAKES Act challenges online platforms’ ability to use Section 230 as a liability shield. Section 230 of the Communications Decency Act immunizes web operators from liability when they publish third-party content.[26] Pertinently, the NO FAKES Act states that even platform hosts that do not participate “in the creation, development, distribution, or dissemination of the applicable digital replica” cannot use Section 230 as a defense.[27] Consequently, this Act would force these platforms to implement a method for detecting unauthorized digital replicas or risk being liable for hosting this content.[28]

If the NO FAKES Act passes, it will have a wide-spread impact on the industry. According to Senator Chris Coons, “generative artificial intelligence has opened doors to exciting new artistic possibilities, but it also presents unique challenges that make it easier than ever to use someone’s voice, image, or likeness without their consent.” [29] The NO FAKES Act is an attempt to allow these doors to remain open, while still protecting those individuals who must pay the price for new artistic possibilities. Given that this is a rapidly changing area of the law, it is unclear whether the NO FAKES Act will successfully strike this balance.


[1] Artificial Intelligence’s Use and Rapid Growth Highlight Its Possibilities and Perils, U.S. Government Accountability Office (Sept. 6, 2023), https://www.gao.gov/blog/artificial-intelligences-use-and-rapid-growth-highlight-its-possibilities-and-perils#:~:text=As%20of%20early%202023%2C%20some,global%20attention%20for%20its%20benefits.

[2] AI in Music Production: Enhancing Human Creativity or Replacing It? Musicians Institute (May 24, 2023), https://www.mi.edu/in-the-know/ai-music-production-enhancing-human-creativity-replacing.

[3] Id.

[4] Teho Belci, Proposed US Legislation Would Penalise Use of AI to Generate Someone’s Likeness Without Their Consent, The Art Newspaper (Oct. 17, 2023), https://www.theartnewspaper.com/2023/10/17/artificial-intelligence-no-fakes-act-us-legislation-non-concensual-likeness.

[5] Douglas Mirell, Hollywood’s AI Concerns About “Digital Replicas” Are Now Being Debated by Congress, Hollywood Reporter (Oct. 26, 2023), https://www.hollywoodreporter.com/news/general-news/hollywood-ai-digital-replicas-congress-no-fakes-act-1235625126.

[6] Brian Contreras, Senators Draft Policy Aimed at Deep Fakes of Drake, Tom Hanks and Noncelebrities, LA Times (Oct. 12, 2023), https://www.latimes.com/entertainment-arts/business/story/2023-10-12/senators-draft-policy-aimed-at-deep-fakes-of-drake-tom-hanks-and-other-celebs. See also Douglas Mirell, Hollywood’s AI Concerns About “Digital Replicas” Are Now Being Debated by Congress, Hollywood Reporter (Oct. 26, 2023), https://www.hollywoodreporter.com/news/general-news/hollywood-ai-digital-replicas-congress-no-fakes-act-1235625126.

[7] Jennifer A. Kenedy & Jorden Rutledge, Locke Lord QuickStudy: The NO FAKES Act: With Proposed Bill, ‎Congress Set to Protect Against Unauthorized ‎Digital Replicas ‎of Faces, Names and Voices, Locke Lord (Oct. 16, 2023), https://www.lockelord.com/newsandevents/publications/2023/10/no-fakes-act#:~:text=The%20NO%20FAKES%20Act%20applies,the%20replica%20was%20not%20authorized; see also Right of Publicity, International Trademark Association https://www.inta.org/topics/right-of-publicity (last visited Nov. 17, 2023).

[8] Karl m. Zielaznicki, Victoria D. Summerfield & Eliza Cen, The Intersection of Generative AI and Copyright Law, Troutman Pepper (Jul. 21, 2023), https://www.troutman.com/insights/the-intersection-of-generative-ai-and-copyright-law.html#:~:text=In%20addition%2C%20state%20laws%20often,appearance%2C%20mannerisms%2C%20and%20gestures; see also International Trademark Association, supra note 7.

[9] Zielaznicki, supra note 8.

[10] Kenedy & Rutledge, supra note 7.

[11] Cal. Civ. Code § 3344 (1872), https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=3344; Tenn. Code § 47-25-1106 (2014), https://law.justia.com/codes/tennessee/2014/title-47/chapter-25/part-11/section-47-25-1106.

[12] Emilia David, Musicians Are Eyeing a Legal Shortcut to Fight AI Voice Clones, The Verge (Sept. 21, 2023), https://www.theverge.com/2023/9/21/23836337/music-generative-ai-voice-likeness-regulation.

[13] Chris Coons, Marsha Blackburn, Amy Klobuchar & Thom Tillis, Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act,  https://www.coons.senate.gov/imo/media/doc/no_fakes_act_one_pager.pdf (last visited Nov. 17, 2024).

[14] Id.

[15] Pesala Bandara, ‘No Fakes Act’ Seeks to Ban Unauthorized AI-Generated Likenesses, PetaPixel (Oct. 16, 2023), https://petapixel.com/2023/10/16/no-fakes-act-seeks-to-ban-unauthorized-ai-generated-likenesses.

[16] Coons, supra note 13.

[17] Kenedy, supra note 7.

[18] Coons, supra note 13.

[19] Id.

[20] Kenedy & Rutledge, supra note 7.

[21] Emilia David, Musicians Are Eyeing a Legal Shortcut to Fight AI Voice Clones, The Verge (Sept. 21, 2023), https://www.theverge.com/2023/9/21/23836337/music-generative-ai-voice-likeness-regulation.

[22] How to Prove Copyright Infringement, Copyright Alliance, https://copyrightalliance.org/education/copyright-law-explained/copyright-infringement/how-to-prove-copyright-infringement/#:~:text=It%20is%20not%20necessary%20that,not%20just%20ideas%20%E2%80%93%20were%20copied (last visited Nov. 17, 2023).

[23] Blake Brittain, AI-Generated Art Cannot Receive Copyrights, US Court Says, Reuters (Aug. 21, 2023), https://www.reuters.com/legal/ai-generated-art-cannot-receive-copyrights-us-court-says-2023-08-21.

[24] Jordan Pearson, Viral AI-Generated Drake Song ‘Heart on My Sleeve’ Removed from Spotify, YouTube, Vice (Apr. 18, 2023), https://www.vice.com/en/article/xgwx44/heart-on-my-sleeve-ai-ghostwriter-drake-spotify.  

[25] Id.

[26] Cong. Rsch. Serv., R46751, Section 230: An Overview (2021).

[27] Coons, supra note 13.

[28] Mirell, supra note 5.

[29] Bandara, supra note 15.