[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[H.R. 9551 Introduced in House (IH)]
<DOC>
118th CONGRESS
2d Session
H. R. 9551
To protect intellectual property rights in the voice and visual
likeness of individuals, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 12, 2024
Ms. Salazar (for herself, Ms. Dean of Pennsylvania, Mr. Moran, Mr.
Morelle, Mr. Wittman, and Mr. Schiff) introduced the following bill;
which was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To protect intellectual property rights in the voice and visual
likeness of individuals, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Nurture Originals, Foster Art, and
Keep Entertainment Safe Act of 2024'' or the ``NO FAKES Act of 2024''.
SEC. 2. VOICE AND VISUAL LIKENESS RIGHTS.
(a) Definitions.--In this section:
(1) Digital replica.--The term ``digital replica'' means a
newly created, computer-generated, highly realistic electronic
representation that is readily identifiable as the voice or
visual likeness of an individual that--
(A) is embodied in a sound recording, image,
audiovisual work, including an audiovisual work that
does not have any accompanying sounds, or
transmission--
(i) in which the actual individual did not
actually perform or appear; or
(ii) that is a version of a sound
recording, image, or audiovisual work in which
the actual individual did perform or appear, in
which the fundamental character of the
performance or appearance has been materially
altered; and
(B) does not include the electronic reproduction,
use of a sample of one sound recording or audiovisual
work into another, remixing, mastering, or digital
remastering of a sound recording or audiovisual work
authorized by the copyright holder.
(2) Individual.--The term ``individual'' means a human
being, living or dead.
(3) Online service.--The term ``online service'' means--
(A)(i) any public-facing website, online
application, mobile application, or virtual reality
environment that predominantly provides a community
forum for user generated content, such as sharing
videos, images, games, audio files, or other material;
or
(ii) a digital music provider, as defined in
section 115(e) of title 17, United States Code; and
(B) may include a social media service, social
network, or application store; provided, however, that
the term does not include a service by wire or radio
that provides the capability to transmit data to and
receive data from all, or substantially all, internet
endpoints, including any capabilities that are
incidental to enable the operation of the
communications service of a provider of online services
or network access, or the operator of facilities for
such service.
(4) Production.--The term ``production'' means the creation
of a digital replica.
(5) Right holder.--The term ``right holder'' means the
individual whose voice or visual likeness is at issue with
respect to a digital replica and any other person that has
acquired, through a license, inheritance, or otherwise, the
right to authorize the use of such voice or visual likeness in
a digital replica.
(6) Sound recording artist.--The term ``sound recording
artist'' means an individual who creates or performs in sound
recordings for economic gain or for the livelihood of the
individual.
(b) Digital Replication Right.--
(1) In general.--Subject to the other provisions of this
section, each individual or right holder shall have the right
to authorize the use of the voice or visual likeness of the
individual in a digital replica.
(2) Nature of right.--
(A) In general.--The right described in paragraph
(1) shall have the following characteristics:
(i) The right is--
(I) a property right;
(II) not assignable during the life
of the individual; and
(III) licensable, in whole or in
part, exclusively or non-exclusively,
by the right holder.
(ii) The right shall not expire upon the
death of the individual, without regard to
whether the right is commercially exploited by
the individual during the individual's
lifetime.
(iii) Upon the death of the individual--
(I) the right is transferable and
licensable, in whole or in part, by the
executors, heirs, assigns, licensees,
or devisees of the individual; and
(II) ownership of the right may
be--
(aa) transferred, in whole
or in part, by any means of
conveyance or by operation of
law; and
(bb) bequeathed by will or
pass as personal property by
the applicable laws of
intestate succession.
(iv) The right shall be exclusive to--
(I) the individual, subject to the
licensing of the right during the
lifetime of that individual under
subparagraph (B); and
(II) the right holder--
(aa) for a period of 10
years after the death of the
individual; and
(bb) if the right holder
demonstrates active and
authorized public use of the
voice or visual likeness of the
individual during the 2-year
period preceding the expiration
of the 10-year period described
in item (aa), for an additional
5-year period, subject to
renewal for additional 5-year
periods, provided the right
holder can demonstrate
authorized public use of the
voice or visual likeness of the
individual during the 2-year
period preceding the expiration
of each additional 5-year
period.
(v) The right shall terminate on the date
that is the earlier of--
(I) the date on which the 10-year
period or 5-year period described in
clause (iv)(II) terminates without
renewal; or
(II) the date that is 70 years
after the death of the individual.
(B) Requirements for license.--
(i) In general.--A license described in
subparagraph (A)(i)(III)--
(I) while the individual is living,
is valid only to the extent that the
license duration does not exceed 10
years; and
(II) shall be valid only if the
license agreement--
(aa) is in writing and
signed by the individual or an
authorized representative of
the individual; and
(bb) includes a reasonably
specific description of the
intended uses of the applicable
digital replica.
(ii) Licenses involving a minor.--A license
described in subparagraph (A)(i)(III) involving
a living individual who is younger than 18
years of age--
(I) is valid only to the extent
that the license duration does not
exceed 5 years, but in any case
terminates when the individual reaches
18 years of age;
(II) shall be valid only if the
license agreement--
(aa) is in writing and
signed by the individual or an
authorized representative of
the individual; and
(bb) includes a reasonably
specific description of the
intended uses of the digital
replica; and
(III) the license is approved by a
court in accordance with applicable
State law.
(iii) Collective bargaining agreements.--
The provisions of clauses (i) and (ii) shall
not apply if the license is governed by a
collective bargaining agreement that addresses
digital replicas.
(iv) Limitation.--The provisions of clauses
(i) and (ii) shall not affect terms and
conditions of a license or related contract
other than those described in this
subparagraph, and the expiration of such
license does not affect the remainder of the
license or related contract.
(C) Requirements for post-mortem transfer.--A post-
mortem transfer or license described in subparagraph
(A)(iii)(I) shall be valid only if the transfer
agreement or license agreement is in writing and signed
by the right holder or an authorized representative of
the right holder.
(D) Registration for post-mortem renewal.--
(i) In general.--The renewal of a post-
mortem right under subparagraph (A)(iv)(II)(bb)
shall be effective if, during the applicable 2-
year renewal period specified in that
subparagraph, the right holder files a notice
with the Register of Copyrights that complies
with such requirements regarding form and
filing procedures as the Register of Copyrights
may prescribe by regulation and that contains--
(I) the name of the deceased
individual;
(II) a statement, under penalty of
perjury, that the right holder has
engaged in active and authorized public
use of the voice or visual likeness
during the applicable 2-year period;
(III) the identity of and contact
information for the right holder; and
(IV) such other information as the
Register of Copyrights may prescribe by
regulation.
(ii) Directory.--The Register of
Copyrights--
(I) shall--
(aa) maintain a current
directory of post-mortem
digital replication rights
registered under this
subparagraph; and
(bb) make the directory
described in item (aa)
available to the public for
inspection online; and
(II) may require payment of a
reasonable filing fee by the
registrant, which may take into
consideration the costs of maintaining
the directory described in subclause
(I).
(iii) Voluntary initial registration.--
(I) In general.--The right holder
may voluntarily register the post-
mortem right under subparagraph
(A)(iv)(II)(aa) by filing a notice with
the Register of Copyrights that
complies with such requirements
regarding form, content, and filing
procedures as the Register of
Copyrights may prescribe by regulation.
(II) Authority of register of
copyrights.--The Register of Copyrights
may--
(aa) include a voluntary
registration of the post-mortem
right under subparagraph
(A)(iv)(II)(aa) in the
directory required by clause
(ii)(I)(aa); and
(bb) require payment of a
reasonable filing fee by the
registrant, which may take into
consideration the costs of
maintaining the directory.
(iv) Authority of register of copyrights.--
The Register of Copyrights may make such
interpretations and resolve such ambiguities as
may be appropriate to carry out this
subparagraph.
(E) Post-expiration or termination utilization of
authorized uses.--A digital replica that is embodied in
a sound recording, image, audiovisual work, including
an audiovisual work that does not have any accompanying
sounds, or transmission, and the use of which is
authorized pursuant to the terms of a license, may
continue to be utilized in a manner consistent with the
terms of that license after the expiration or
termination of the license.
(c) Liability.--
(1) In general.--Any person that, in a manner affecting
interstate commerce (or using any means or facility of
interstate commerce), engages in an activity described in
paragraph (2) shall be liable in a civil action brought under
subsection (e).
(2) Activities described.--An activity described in this
paragraph is either of the following:
(A) The production of a digital replica without
consent of the applicable right holder.
(B) The publication, reproduction, display,
distribution, transmission of, or otherwise making
available to the public, a digital replica without
consent of the applicable right holder.
(3) Knowledge required.--To incur liability under this
subsection, a person engaging in an activity shall have actual
knowledge, which could be obtained through a notification that
satisfies subsection (d)(3), or shall willfully avoid having
such knowledge, that--
(A) the applicable material is a digital replica;
and
(B) the digital replica was not authorized by the
applicable right holder.
(4) Exclusions.--
(A) In general.--It shall not be a violation of
paragraph (1) if--
(i) the applicable digital replica is
produced or used in a bona fide news, public
affairs, or sports broadcast or account,
provided that the digital replica is the
subject of, or is materially relevant to, the
subject of such broadcast or account;
(ii) the applicable digital replica is a
representation of the applicable individual as
the individual in a documentary or in a
historical or biographical manner, including
some degree of fictionalization, unless--
(I) the production or use of that
digital replica creates the false
impression that the work is an
authentic sound recording, image,
transmission, or audiovisual work in
which the individual participated; or
(II) the digital replica is
embodied in a musical sound recording
that is synchronized to accompany a
motion picture or other audiovisual
work, except to the extent that the use
of that digital replica is protected by
the First Amendment to the Constitution
of the United States;
(iii) the applicable digital replica is
produced or used consistent with the public
interest in bona fide commentary, criticism,
scholarship, satire, or parody;
(iv) the use of the applicable digital
replica is fleeting or negligible; or
(v) the applicable digital replica is used
in an advertisement or commercial announcement
for a purpose described in any of clauses (i)
through (iv) and the applicable digital replica
is relevant to the subject of the work so
advertised or announced.
(B) Applicability.--Subparagraph (A) shall not
apply where the applicable digital replica is used to
depict sexually explicit conduct, as defined in section
2256(2)(A) of title 18, United States Code.
(d) Safe Harbors.--
(1) In general.--
(A) Products and services capable of producing
digital replicas.--No person shall be secondarily
liable for a violation of this section for
manufacturing, importing, offering to the public,
providing, or otherwise distributing a product or
service unless the product or service--
(i) is primarily designed to produce 1 or
more unauthorized digital replicas;
(ii) has only limited commercially
significant purpose or use other than to
produce an unauthorized digital replica; or
(iii) is marketed, advertised, or otherwise
promoted by that person or another acting in
concert with that person with that person's
knowledge for use in producing an unauthorized
digital replica.
(B) Referral or linking.--An online service shall
not be liable for violating the right described in
subsection (b) by referring or linking a user to an
unauthorized digital replica, or by carrying out an
activity described in subsection (c)(2), if, upon
receiving a notification described in paragraph (3),
the online service removes or disables access to the
material that is claimed to be an unauthorized digital
replica as soon as is technically and practically
feasible for that online service.
(C) Online services hosting user-uploaded
material.--An online service shall not be liable for
violating the right described in subsection (b) by
storing third-party provided material that resides on a
system or network controlled or operated by or for the
online service, if, upon receiving a notification that
satisfies paragraph (3), the online service--
(i) removes, or disables access to, all
instances of the material (or an activity using
the material) that is claimed to be an
unauthorized digital replica as soon as is
technically and practically feasible for that
online service; and
(ii) having done so, takes reasonable steps
to promptly notify the third party that
provided the material that the online service
has removed or disabled access to the material.
(2) Designated agent.--
(A) In general.--The limitations on liability
established under this subsection shall apply to an
online service only if the online service has
designated an agent to receive notifications under
paragraph (3), by making available through the online
service, including on the website of the online service
in a location accessible to the public, and by
providing to the Copyright Office, substantially the
following information:
(i) The name, address, telephone number,
and electronic mail address of the agent.
(ii) Other contact information that the
Register of Copyrights may determine
appropriate.
(B) Directory.--The Register of Copyrights--
(i) shall--
(I) maintain a current directory of
designated agents for the purposes of
this paragraph; and
(II) make the directory described
in subclause (I) available to the
public for inspection, including
through the internet; and
(ii) may require payment of a fee by online
services to cover the costs of maintaining the
directory described in clause (i)(I).
(3) Elements of notification.--To be effective under this
subsection, a notification of a claimed violation of the right
described in subsection (b) shall be a written communication
provided to the designated agent of an online service that
includes the following:
(A) A physical or electronic signature of the right
holder, a person authorized to act on behalf of the
right holder, or an eligible plaintiff under subsection
(e)(1).
(B) Identification of the individual, the voice or
visual likeness of whom is being used in an
unauthorized digital replica.
(C) Identification of the material containing an
unauthorized digital replica, including information
sufficient to allow the online service to locate the
allegedly unauthorized digital replica.
(D) Information reasonably sufficient to permit the
online service to contact the notifying party, such as
an address, telephone number, and electronic mail
address.
(E) A statement that the notifying party believes
in good faith that the material is an unauthorized use
of a digital replica.
(F) If not the right holder or an eligible
plaintiff under subsection (e)(1), a statement that the
notifying party has the authority to act on behalf of
the right holder.
(G) For the purposes of paragraph (1)(B),
information reasonably sufficient to--
(i) identify the reference or link to the
material or activity claimed to be an
unauthorized digital replica that is to be
removed or to which access is to be disabled;
and
(ii) permit the online service to locate
the reference or link described in clause (i).
(4) Penalties for false or deceptive notice.--
(A) In general.--It shall be unlawful to knowingly
materially misrepresent under paragraph (3)--
(i) that the material requested to be
removed is an unauthorized digital replica;
(ii) that a person has the authority to act
on behalf of the right holder; or
(iii) that a digital replica is not
authorized by the right holder or by other law.
(B) Penalties.--Any person that violates
subparagraph (A) shall be liable for an amount equal to
the greater of--
(i) $5,000; or
(ii) any actual damages, including costs
and attorney's fees, incurred by the alleged
violator, as well as by any online service
injured by the reliance of the online service
on the misrepresentation in removing or
disabling access to the material or activity
claimed to be an unauthorized digital replica.
(e) Civil Action.--
(1) Eligible plaintiffs.--A civil action for a violation of
this section may be brought by--
(A) a right holder;
(B) if the individual is younger than 18 years of
age, a parent or guardian of the individual;
(C) any other person that controls, including by
virtue of a license, the right to authorize the use of
the voice or visual likeness of the right holder
described in subparagraph (A);
(D) any other person that owns or controls the
right to authorize the use of the voice or visual
likeness of a deceased individual described in
subparagraph (A); or
(E) in the case of a digital replica involving a
sound recording artist, any person that has, directly
or indirectly, entered into--
(i) a contract for the exclusive personal
services of the sound recording artist as a
sound recording artist; or
(ii) an exclusive license to distribute or
transmit 1 or more works that capture the audio
performance of the sound recording artist.
(2) Limitations period.--A civil action may not be brought
under this subsection unless the action is commenced not later
than 3 years after the date on which the party seeking to bring
the civil action discovered, or with due diligence should have
discovered, the applicable violation.
(3) Defense not permitted.--It shall not be a defense in a
civil action brought under this subsection that the defendant
displayed or otherwise communicated to the public a disclaimer
stating that the applicable digital replica was unauthorized or
disclosing that the digital replica was generated through the
use of artificial intelligence or other technology.
(4) Remedies.--
(A) In general.--In any civil action brought under
this subsection--
(i) an individual or entity that engages in
an activity described in subsection (c)(2)
shall be liable to the injured party in an
amount equal to the greater of--
(I)(aa) in the case of an
individual, $5,000 per work embodying
the applicable unauthorized digital
replica;
(bb) in the case of an entity that
is an online service, $5,000 per
violation; and
(cc) in the case of an entity that
is not an online service, $25,000 per
work embodying the applicable
unauthorized digital replica; or
(II) any actual damages suffered by
the injured party as a result of the
activity, plus any profits from the
unauthorized use that are attributable
to such use and are not taken into
account in computing the actual
damages;
(ii) the plaintiff may seek injunctive or
other equitable relief;
(iii) in the case of willful activity in
which the injured party has proven that the
defendant acted with malice, fraud, knowledge,
or willful avoidance of knowledge that the
conduct violated the law, the court may award
to the injured party punitive damages; and
(iv) if the prevailing party is--
(I) the party bringing the action,
the court shall award reasonable
attorney's fees; or
(II) the party defending the
action, the court shall award
reasonable attorney's fees if the court
determines that the action was not
brought in good faith.
(B) Violation defined.--For purposes of this
paragraph, ``violation'' means each display, copy made,
transmission, and each instance of the unauthorized
digital replica being otherwise made available on the
online service, unless the online service has taken
reasonable steps to remove, or disable access to, the
unauthorized digital replica as soon as is technically
and practically feasible for the online service upon
acquiring knowledge as set forth in subsection (c)(3).
(C) Objectively reasonable belief.--An online
service that has an objectively reasonable belief that
material that is claimed to be an unauthorized digital
replica does not qualify as a digital replica under
subsection (a)(1) shall not be liable for statutory or
actual damages exceeding $1,000,000, regardless of
whether the material is ultimately determined to be an
unauthorized digital replica.
(D) Replacement of removed material.--In the event
that the third party that provided the material that
the online service has removed or to which the online
service has disabled access files a lawsuit in a court
of the United States against the sender of a notice
under subsection (d)(3) claiming that such notice was
false or deceptive as provided in subsection (d)(4),
the online service may, provided that the lawsuit was
filed not later than 14 days after the user receives
notice that the online service has removed or disabled
access to the material, restore the removed material to
its network for access by members of the public without
monetary liability therefor to either the notice sender
or the third party that provided the material that the
online service had removed or disabled access.
(f) Preemption.--
(1) In general.--The rights established under this Act
shall preempt any cause of action under State law for the
protection of an individual's voice and visual likeness rights
in connection with a digital replica, as defined in this Act,
in an expressive work.
(2) Rule of construction.--Notwithstanding paragraph (1),
nothing in this Act may be construed to preempt--
(A) causes of action under State statutes or common
law in existence as of January 2, 2025, regarding a
digital replica, as defined in this Act;
(B) causes of action under State statutes
specifically regulating a digital replica depicting
sexually explicit conduct, as defined in section
2256(2)(A) of title 18, United States Code, or an
election-related digital replica; or
(C) causes of action under State statutes or common
law for the manufacturing, importing, offering to the
public, providing, making available, or otherwise
distributing a product or service capable of producing
1 or more digital replicas.
(g) Rule of Construction.--This section shall be considered to be a
law pertaining to intellectual property for the purposes of section
230(e)(2) of the Communications Act of 1934 (47 U.S.C. 230(e)(2)).
(h) Severability.--If any provision of this section, or the
application of a provision of this section, is held to be invalid, the
validity of the remainder of this section, and the application of that
provision to other persons and circumstances, shall not be affected by
that holding.
(i) Retroactive Effect.--
(1) Liabilities.--Liability under this section shall apply
only to--
(A) conduct occurring after the date of enactment
of this Act; and
(B) in the case of conduct covered by a license or
contract, a license or contract that is executed after
the date of enactment of this Act.
(2) Digital replication right.--The right granted under
subsection (b)--
(A) shall apply to any individual, regardless of
whether the individual dies before or after the date of
enactment of this Act; and
(B) in the case of a right holder who has died
before the date of enactment of this Act, shall vest in
the executors, heirs, assigns, or devisees of the right
holder.
(j) Effective Date.--This Act shall take effect on the date that is
180 days after the date of enactment of this Act.
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