The U.S. Copyright Office is tackling the issue of digital replicas — videos, pictures or audio recordings digitally created or manipulated to falsely depict an individual – and is calling on Congress to pass a federal law protecting victims from the knowing distribution of such replicas.
Due to the sophistication of artificial intelligence, digital replicas have become a pressing copyright issue, including AI-generated musical performances, robocall impressions of political candidates and deep fakes in pornographic pictures and videos. While many target entertainers and politicians, average U.S. citizens are increasingly victimized.
The Copyright Office released the first part of a series of releases from its report on artificial intelligence and copyright. Shira Perlmutter, register of Copyrights and director of the U.S. Copyright Office, said the report makes clear there are gaps in existing legal protections.
“…It has become clear that the distribution of unauthorized digital replicas poses a serious threat not only in the entertainment and political arenas but also for private citizens,” she said. “We believe there is an urgent need for effective nationwide protection against the harms that can be caused to reputations and livelihoods. We look forward to working with Congress as they consider our recommendations and evaluate future developments.”
Existing federal laws, such as the Copyright Act, the Federal Trade Commission Act and the Lanham Act, do not prohibit many of the uses of unauthorized digital replicas. Additionally, current state laws addressing the right of privacy and right of publicity are often too narrow because they only cover famous people, soldiers and the deceased.
The released part of the report recommends Congress pass a law that:
- targets replicas that are so realistic they are difficult to distinguish from authentic depictions.
- covers all individuals, not just public figures.
- endures for at least the individual’s lifetime.
- attaches liability for knowingly distributing unauthorized digital replicas, whether for commercial or personal use.
- includes incentive for online service providers to remove unauthorized digital replicas after being notified or realizing they are unauthorized.
- allows individuals to license and monetize their digital replica rights, with additional safeguards for children.
- addresses free-speech concerns through a balanced framework.
- includes effective injunctive relief and monetary damages, as well as criminal liability.
- allows for states to enact and enforce their own privacy and publicity laws and clarifies the law does not preempt or conflict with state laws.
In early 2023, the Copyright Office began to explore the intersection of copyright and artificial intelligence, including hosting public listening session, soliciting public input and meeting with experts and stakeholders. The office reviewed more than 10,000 comments, issued registration guidance and conducted webinars on the topic.
Future parts of the report will address the copyrightability of materials created by generative artificial intelligence, the legal implications of training artificial models on copyrighted works, licensing considerations and potential liability. More information is available at the copyright office’s website.
Harris Beach’s Intellectual Property Practice Group is monitoring developments on this subject and related matters. Should you have questions, please contact Intellectual Property attorney Laura W. Smalley at (585) 419-8736 and lsmalley@harrisbeachmurtha.com, or the Harris Beach attorney with whom you most frequently work.
This alert is not a substitute for advice of counsel on specific legal issues.
Harris Beach has offices throughout New York state, including Albany, Buffalo, Ithaca, Long Island, New York City, Rochester, Saratoga Springs, Syracuse and White Plains, as well as Washington D.C., New Haven, Connecticut and Newark, New Jersey.
