Washington has spent years arguing about AI deepfakes, and on September 30 it almost did something about it. Sen. Marsha Blackburn asked the Senate to pass the NO FAKES Act, S. 4591, by unanimous consent. That's the fast lane, and any one senator can stop it.
One did. Sen. Ted Cruz said he voted for the bill in committee but worried its parody protections were too thin. "There is a difference between stealing a country music star's voice and using it for commercial purposes and engaging in political parody," he said. He also said the bill "leaves it to Big Tech to make the decision" about what counts as parody. Then: "At least as of now, though, I object."
Blackburn answered that the language he wanted was already in, and read it aloud: uses "consistent with the public interest in bona fide commentary (including political commentary)."
Her request named the committee-reported text, Calendar No. 446. That printed version says "bona fide commentary, criticism, scholarship, satire, or parody." I couldn't find "political commentary" in it, and the public record doesn't say where her wording comes from. Read the text, not the summary. The devil is in the details.
The parody fight got the headlines. Two other clauses matter more to anyone whose face or voice is worth money.
Takeaway #1: The NO FAKES Act clause that would override newer state laws
FROM THE BILL
"The rights established under this section 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 section, in an expressive work."
What it means for you. "Preempt" means federal law wins and the state claim goes away. A "digital replica" is the bill's term for a "newly created, computer-generated, highly realistic electronic representation" of someone's voice or likeness. An "expressive work" is a creative work, like a film or a song.
The very next paragraph carves out exceptions. The bill would not preempt "causes of action under State statutes or common law in existence, as of January 2, 2025, regarding a digital replica." It also spares state laws on sexually explicit replicas and "election-related" ones.
So the cutoff date does a lot of work. On my reading, a state replica law already on the books by January 2, 2025 would keep working alongside the federal right. A newer state law, as applied to replicas in expressive works, might not. If you're counting on one of those, check its effective date against that cutoff.
Your move. If your contracts lean on a state likeness law, ask your lawyer which date it took effect. That one fact may decide whether it survives.
Takeaway #2: A license for your AI double has a shelf life
FROM THE BILL
"while the applicable individual is living, is valid only to the extent that the license duration does not exceed 10 years ... includes a reasonably specific description of the intended uses of the applicable digital replica."
What it means for you. This is the part I'd tape to every performer's fridge. Under the bill, a license of your digital replica while you're alive would be valid only for up to 10 years. It would have to be in writing and signed, and it would have to describe the intended uses with reasonable specificity. Union contracts that address digital replicas are exempt from these limits.
That's the opposite of the "in perpetuity, throughout the universe" language you've seen in old releases. A vague grant of "all uses" may not hold up as a license of your replica under this bill.
After death, a right holder would get 10 years, renewable in five-year blocks while the voice or likeness stays in active, authorized public use, ending no later than "70 years after the death of the individual." Estates, this is your homework.
Your move. Before you sign anything that mentions AI, a "digital double" or your "voice and likeness," look for two things: a fixed term and a written list of uses. If either one is missing, fix it now.
Sample wording (our illustration): "Licensee may create and use a digital replica of Artist's voice solely for the uses listed in Schedule A, for a term of three years."
And always remember, don't sign it till you read it, my friends.
General information, not legal advice. Reading this doesn't create an attorney-client relationship. Ask your own lawyer how a pending bill could affect your contracts.
