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States getting into the AI deepfake prohibition act
RICHARD WEINER
Technology for Lawyers
Published: April 26, 2024
AI deepfakes are here, and they may disrupt everything from politics to the music industry.
And while the copyright protection aspect of deepfakes belongs generally to the federal government, states are starting to pass laws designed to prevent that disruption.
The specific laws involved are a government’s Right of Publicity (ROP) statutes that seek to impose civil liability on use of another’s “likeness” (broadly defined) related to music (voice), entertainment, advertisements, politics, and etc.
The new laws and regulations enacted or under consideration seek to update current ROP laws and regs.
First up is Tennessee, home of Elvis, with their recently passed Ensuring Likeness, Voice, and Image Security (ELVIS) Act of 2024, expanding the state’s ROP laws in ways that seem to target AI fakes—particularly those that are trying to imitate famous singers.
This is in addition to the state’s ROP laws that already limit the imitation of an individuals name, image or likeness.
There are all kinds of sticky First Amendment things and fair use things and basic definitional things going on here, so we shall see how this plays out.
Other states considering AI-driven updates to their ROP laws include Kentucky (similar to the ELVIS Act), Illinois (also similar to ELVIS), California (not allowing AI deepfakes of dead people) and Louisiana, which focuses it’s new laws on deepfakes in politics.
On the federal side (because, after all, the federal government has the means to enforce these things in ways the states do not), there were a couple of bills introduced into Congress this session.
Who knows what fate awaits them, of course, but they are:
The Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act of 2023, which would hold people, platforms and companies accountable for producing or distributing AI fakes of real people.
We also have the No Artificial Intelligence Fake Replicas and Unauthorized Duplications Act (No AI Fraud Act) semi- patterned after the ELVIS Act.
And there is the AI Labeling Act of 2023, which concerns it self with attempting to limit or punish deepfakes.
Both the FTC and the Copyright Office are making multiple attempts to control AI-generated deepfakes.
Good luck to all, especially the enforcers trying to bring Russian and Chinese deepfake creators to justice.