Womble Perspectives
Welcome to Womble Perspectives, where we explore a wide range of topics from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever-changing legal landscape. With a focus on innovation, collaboration and client service, we are committed to delivering exceptional value to our clients and to the communities we serve.
Womble Perspectives
Navigating the Legal Waters of AI Likeness Laws in 2024
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With AI advancing at a rapid pace, digital replicas and deepfakes are becoming more and more common, leaving the legal world scrambling to keep up. These AI-generated likenesses are so convincing, they're almost indistinguishable from the real thing. While this opens up exciting creative possibilities, it also poses serious legal challenges, especially regarding Name, Image, and Likeness rights.
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Comparing California’s AI-Likeness Bills with the Federal NO FAKES Act of 2024
About the authors
John P. Bossert
Dr. Christian E. Mammen
Welcome to Womble Perspectives, where we explore a wide range of topics, from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever changing legal landscape.
With a focus on innovation, collaboration and client service. We are committed to delivering exceptional value to our clients and to the communities we serve. And now our latest episode.
With AI advancing at a rapid pace, digital replicas and deepfakes are becoming more and more common, leaving the legal world scrambling to keep up. These AI-generated likenesses are so convincing, they're almost indistinguishable from the real thing. While this opens up exciting creative possibilities, it also poses serious legal challenges, especially regarding Name, Image, and Likeness rights.
The reality that digital replicas have the capability to mimic individuals without their consent has, understandably, raised significant concerns, making robust legislation crucial to protect personal privacy and intellectual property rights. The federal NO FAKES Act of 2023 took a significant step, aiming to establish clear property rights for digital replicas. The Act defines a digital replica as a computer-generated likeness of a person, and it introduced post-mortem rights extending 70 years, ensuring protection even after death.
Yet, the 2023 act sparked debates by not overriding state laws, leading to a patchwork of regulations. Fast forward to the NO FAKES Act of 2024, which builds upon its predecessor. This act expanded definitions and introduced liability conditions, offering a more dynamic approach to post-mortem rights. Instead of a flat 70-year duration, rights can be renewed every five years, contingent on authorized public use. Crucially, this version includes a preemption clause, aiming for a unified federal standard, but it still allows exceptions for specific state statutes.
On the state level, California has passed bill AB 2602, invalidating contract clauses that allow digital replicas without proper representation, emphasizing transparency and fair agreements. This move protects both content creators and performers, ensuring digital replicas don't replace real human efforts.
California has also passed AB 1836, which focuses on deceased personalities. It requires consent from representatives before using a deceased individual's likeness, mirroring the federal perspective on protecting post-mortem rights.
When comparing federal and state approaches, key differences emerge. The definitions and treatments of digital replicas vary, with federal laws generally broader, while states like California offer more straightforward legislation. Legal liabilities also diverge, with federal laws providing safe harbors, while state laws might impose different penalties, affecting how businesses operate across jurisdictions.
Support and opposition come from all corners, with the entertainment industry largely backing these laws to protect creative rights. However, tech companies and civil liberties groups worry about potential overreach and impacts on innovation.
The intersection of AI and intellectual property rights presents unique challenges. Laws must continuously adapt to technological advancements to effectively define and protect digital replicas. For creative industries and individuals, these laws offer a framework to safeguard their work and likenesses, but compliance requires constant education and vigilance.
As AI technology evolves, regulators face the challenge of balancing innovation and individual rights. Adaptive, comprehensive legislation is essential to prevent outdated laws from hindering progress and leaving protection gaps. This ongoing dialogue between lawmakers, industry leaders, and the public is crucial for creating laws that anticipate future advancements while also mitigating risks.
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