In an article for Westlaw Today and Reuters Legal News, Keker partners Paven Malhotra, Michelle Ybarra, and Matan Shacham analyze the U.S. Copyright Office's report on artificial intelligence and deepfakes, emphasizing the urgent need for federal legislation.
Released on July 31, 2024, the Copyright Office’s report focuses on AI-generated digital replicas, or deepfakes, which convincingly but falsely depict individuals, often for harmful purposes. While deepfake technology has positive applications, such as improving accessibility and fostering creativity, its misuse raises significant legal and ethical concerns. Explicit content accounts for 98% of all deepfake videos, overwhelmingly targeting women, and the technology is increasingly used in scams, disinformation campaigns, and other harmful activities.
The Copyright Office's findings, based on extensive public input and stakeholder meetings, reveal significant gaps in existing laws. Current copyright and intellectual property laws do not adequately address the harms posed by unauthorized digital replicas. Copyright law does not protect an individual’s likeness, and laws like the Lanham Act and Federal Trade Commission Act are limited to commercial uses. Meanwhile, state laws vary widely and often fail to cover non-commercial deepfakes.
To close these gaps, the report bluntly calls for new federal legislation. On the day of its release, a bipartisan group of senators introduced the NO FAKES (The Nurture Originals, Foster Art, and Keep Entertainment Safe) Act, proposing a federal right for individuals to control the use of their likeness and voice, liability for unauthorized digital replicas, and a national standard preempting conflicting state law.
Although passage of federal legislation is unlikely in the near term, Keker partners write that states are advancing their own measures. Over a dozen states have enacted laws targeting non-consensual explicit deepfakes, and more are expected. Local governments are also taking action, as seen in San Francisco’s lawsuit against websites enabling non-consensual image creation of women and girls. As legislative efforts evolve, deepfake regulation will be critical to protecting individuals, industries, and democratic institutions.
Read the full article here.