While the Court Fights Over AI and Copyright Continue, Congress and States Focus On Digital Replicas: 2024 in Review

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The phrase “move fast and break things” carries pretty negative connotations in these days of (Big) techlash. So it’s surprising that state and federal policymakers are doing just that with the latest big issue in tech and the public consciousness: generative AI, or more specifically its usez to generate deepfakes. 

Creators of all kinds are expressing a lot of anxiety around the use of generative artificial intelligence, some of it justified. The anxiety, combined with some people’s understandable sense of frustration that their works were used to develop a technology that they fear could displace them, has led to multiple lawsuits. 

But while the courts sort it out, legislators are responding to heavy pressure to do something. And it seems their highest priority is to give new or expanded rights to protect celebrity personas – living or dead – and the many people and corporations that profit from them.

The broadest “fix” would be a federal law, and we’ve seen several proposals this year. The two most prominent are NO AI FRAUD (in the House of Representatives) and NO FAKES (in the Senate).  The first, introduced in January 2024, the Act purports to target abuse of generative AI to misappropriate a person’s image or voice, but the right it creates applies to an incredibly broad amount of digital content: any “likeness” and/or “voice replica” that is created or altered using digital technology, software, an algorithm, etc. There’s not much that wouldn’t fall into that category—from pictures of your kid, to recordings of political events, to docudramas, parodies, political cartoons, and more. It also characterizes the new right as a form of federal intellectual property. This linguistic flourish has the practical effect of putting intermediaries that host AI-generated content squarely in the litigation crosshairs because Section 230 immunity does not apply to federal IP claims. NO FAKES, introduce

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