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[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 4875 Introduced in Senate (IS)]

<DOC>

118th CONGRESS
  2d Session
                                S. 4875

    To protect intellectual property rights in the voice and visual 
            likeness of individuals, and for other purposes.

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

                             July 31, 2024

Mr. Coons (for himself, Mrs. Blackburn, Ms. Klobuchar, and Mr. Tillis) 
introduced the following bill; which was read twice and 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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