S-4591-119
Placed on Senate Legislative Calendar under General Orders. Calendar No. 446.
Sponsored by Christopher Coons (D-DE)
What it does
The NO FAKES Act would create a new federal property right for every individual — living or dead — to control the use of their voice or visual likeness in AI-generated "digital replicas." It would establish a notice-and-takedown system for online platforms similar to copyright law's DMCA process, requiring platforms to remove unauthorized digital replicas upon notification. The bill would set civil penalties for violations, create safe harbors for platforms that comply in good faith, and partially preempt state laws on the same subject, while carving out exceptions for news, satire, commentary, documentaries, and other expressive uses.
Who benefits
Performing artists, musicians, actors, and other public figures whose likenesses are most commonly replicated without consent. Estates and heirs of deceased celebrities who would inherit and control post-mortem likeness rights for up to 70 years. Record labels and entertainment companies holding exclusive contracts with artists, who gain standing to sue on the artist's behalf. Ordinary private individuals whose voices or faces could be used in non-consensual deepfakes. Victims of non-consensual intimate imagery (deepfake pornography), who gain a federal civil remedy. Online platforms that comply in good faith, who receive safe harbor protection from liability. Unions and guilds (e.g., SAG-AFTRA) whose collective bargaining agreements on digital replicas would be explicitly recognized.
Who is hurt
AI companies and developers whose tools can generate realistic likenesses, who face potential liability and compliance costs. Online platforms that host user-generated content, who must build and maintain notice-and-takedown infrastructure and digital fingerprinting systems. Independent creators, fan communities, and satirists who may face takedown notices even for protected expressive uses. Researchers and academics using AI voice/likeness tools, though nonprofit educational institutions receive a carve-out. Journalists and documentary filmmakers who may face legal uncertainty about whether their use qualifies for the news/documentary exemption. Smaller technology startups that lack resources to implement compliance systems that large platforms can absorb more easily. States with existing right-of-publicity laws, whose statutes would be partially preempted for digital replica claims in expressive works.
Supporters argue
Supporters argue that the rapid proliferation of AI-generated deepfakes has created a legal vacuum in which anyone's voice or face can be cloned without consent, causing documented harms ranging from financial fraud to non-consensual intimate imagery. They contend that existing state right-of-publicity laws are a patchwork — only about half of states have them, they vary widely, and none were designed for AI-generated content — leaving most Americans without meaningful protection. Supporters further argue the bill's robust First Amendment carve-outs for news, satire, commentary, parody, and documentary use ensure that creative and expressive speech is protected while closing the specific gap of commercial exploitation without consent.
Opponents argue
Opponents argue that the bill's broad definition of "digital replica" and its notice-and-takedown mechanism could be weaponized to suppress legitimate speech, since takedowns occur before any judicial review of whether the use is actually protected. They contend that the bill's First Amendment exemptions — for satire, commentary, and news — are vague enough that platforms will over-remove content to avoid liability, chilling protected expression in ways the Supreme Court has warned against in cases like Moody v. NetChoice (2024). Opponents further argue that extending likeness rights to 70 years post-death creates a perpetual commercial monopoly for estates and corporations over cultural figures, restricting the public domain and concentrating control over historical likenesses in private hands.
Constitutional context
Congress's authority to create this right rests on the Commerce Clause (Art. I, §8, cl. 3), as the bill explicitly ties liability to activities "affecting interstate or foreign commerce." The bill also implicates the First Amendment, which the bill addresses through its expressive-use exemptions for news, satire, commentary, and parody. Post-Loper Bright (2024), any regulations the Copyright Office issues under this bill — including notice procedures and filing requirements — would face independent judicial scrutiny rather than deference, potentially creating uncertainty around the administrative framework.
Checks and balances
Congress creates the new right and sets its boundaries; the Copyright Office administers the registration and designated-agent directories; federal courts adjudicate civil claims and review the scope of exemptions, with no agency deference under Loper Bright (2024).
Historical precedent
The Digital Millennium Copyright Act (1998) established the notice-and-takedown framework and safe harbor system for copyright infringement that this bill closely mirrors for likeness rights; that system has been extensively litigated and shaped by cases such as Viacom v. YouTube (2d Cir. 2012).