By Megan Isagholian.
Introduction
AI-generated deepfake media may have positive and negative uses. Deepfake technology has been used to improve visual effects[1] and enable guest appearances or performances of deceased individuals.[2] On the other hand, deepfake technology can create fake videos that potentially damage reputations[3] and lead to the “loss of authenticity and creativity in music and sound production.”[4]
A prominent question remains: do the pros outweigh the cons of deepfake technology? Some people do not believe so, leading to the introduction of the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act of 2024. The NO FAKES Act is the first federal legislation to curtail deepfake technology and address digital replicas in the entertainment industry.[5]
Defining Digital Replicas and Deepfakes
A deepfake, also referred to as a digital replica, is “a newly-created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual.”[6] This representation “is embodied in a sound recording, image, [or] audiovisual work ” where the individual did not appear or perform or, if the individual did appear, their performance or appearance has been materially altered.[7] It excludes practices such as sampling, “remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.”[8]
NO FAKES Act of 2024
Currently, federal legislation does not regulate digital replica technology within the United States.[9] In response to the rise of digital replica, the NO FAKES Act of 2024, a bipartisan bill, has been introduced in the Senate by Senators Chris Coons, Marsha Blackburn, Amy Klobuchar, and Thom Tillis.[10] The NO FAKES Act aims to protect an individual’s voice and visual likeness from the creation of unauthorized digital replicas.[11]
The NO FAKES Act would hold companies or individuals liable for damages for producing, distributing, or posting digital replicas of an individual in an image, sound recording, or audiovisual work where the individual did not actually appear or perform without the individual’s consent.[12]
Platforms that knowingly post an unauthorized digital replica would also face liability.[13] But the Act includes a safe harbor provision. Online platforms that use an individual’s unauthorized digital replica avoid liability if the platform removes the unauthorized replica “as soon as technically and practically feasible” after receiving a notice of violation.[14] The NO FAKES Act excludes certain digital replicas, including documentaries, bona fide news, parody, scholarship, and historical or biographical portrayals, among others.[15]
Furthermore, under the proposed NO FAKES Act, an individual’s digital replication rights are valid during their lifetime and ten years following an individual’s death.[16] They can then be extended up to seventy years after an individual’s death.[17] The Act also includes a three-year statute of limitations that begins when an individual discovers the use of an unauthorized digital replica and files a civil action for the violation.[18]
Deepfake Examples
With AI’s continuing sophistication, deepfakes have impacted the entertainment industry at large, but they impact women at substantially higher rates than men.[19]
Deepfake technology is used to create videos of women without their consent.[20] Female faces are digitally inserted into sexually explicit videos, which are often posted to pornographic websites.[21] In 2023, researchers concluded that 99% of deepfake pornography consisted of female individuals and 94% of those individuals worked within the entertainment industry.[22]
Sexual deepfakes have victimized many celebrity actresses.[23] In one instance, Scarlett Johansson’s face was deepfaked into several graphic sex scenes.[24] One of these deepfake pornographic videos garnered 1.5 million views.[25] Johansson expressed frustrations, stating, “the fact is that trying to protect yourself from the internet and its depravity is basically a lost cause.”[26]
Actresses have also been deepfaked into sexually explicit ads to promote a deepfake app.[27] In a Facebook ad, Emma Watson appeared to initiate a sexual act; however, this was not Watson.[28] Watson’s face was digitally inserted into this ad.[29] But this was not one occurrence—Watson’s face and likeness have been featured in 127 deepfaked ads.[30]
Deepfake technology is yet another tool to target women working in the entertainment industry.[31] A possible reason for this is the availability of auditory and visual materials of female entertainment professionals.[32] While this might be true, it does not necessarily mean that deepfake creators should be able to use and manipulate any material available.
Deepfake technology has also found its way into the music industry.[33] The song “Heart on My Sleeve” was created with AI-generated voices from Drake and The Weeknd.[34] Originally posted on TikTok, it was also shared on YouTube and Spotify.[35] Universal Music Group removed “Heart on My Sleeve” from all streaming services, but it had acquired 15 million TikTok views, 275,000 YouTube views, and 600,000 Spotify streams.[36]
The rise of deepfake technology being used to create music without human involvement can lead to an artist’s loss of creativity, but it will also impact the music industry as a whole.[37] The increased use of AI can lead to job disruption.[38] Approximately 1,800 payroll jobs will be affected by AI in the U.S. by 2026.[39] California, Tennessee, and New York have the largest concentrations of music and sound recording employment, and the percentage of jobs disrupted is predicted to be 26.2%, 18.0%, and 17.6%, respectively.[40]
Conclusion:
While the NO FAKES Act has yet to pass, advocates urge the need for federal legislation to confront AI deepfake technology.[41] If passed, the NO FAKES Act would provide a single national framework for protecting individuals’ rights in their voice and visual likeness.[42]
[1] Don Philmlee, Practice Innovations: Seeing is no longer believing — the rise of deepfakes, Thomson Reuters (July 18, 2023), https://www.thomsonreuters.com/en-us/posts/technology/practice-innovations-deepfakes/.
[2] S.J. Velasquez, How AI is bringing film stars back from the dead, BBC (July 18, 2023), https://www.bbc.com/future/article/20230718-how-ai-is-bringing-film-stars-back-from-the-dead.
[3] Philmlee, supra note 1.
[4] Future Unscripted: The Impact of Generative Artificial Intelligence on Entertainment Industry Jobs, CVL Economics (Jan. 2024), https://animationguild.org/wp-content/uploads/2024/01/Future-Unscripted-The-Impact-of-Generative-Artificial-Intelligence-on-Entertainment-Industry-Jobs-pages-1.pdf.
[5] Nick Breen & Joshua Love, AI and publicity rights: The No Fakes Act strikes a chord, Reed Smith LLP (Aug. 6, 2024), https://www.reedsmith.com/en/perspectives/2024/08/ai-and-publicity-rights-the-no-fakes-act-strikes-a-chord.
[6] S. 4875, 118th Cong. (2024).
[7] Id.
[8] Id.
[9] Michelle M. Graham, Deepfakes: Federal and state regulation aims to curb a growing threat, Thomson Reuters (June 26, 2024), https://www.thomsonreuters.com/en-us/posts/government/deepfakes-federal-state-regulation/.
[10] Nina Frazier, NO FAKES Act Introduced In The Senate: Protecting Artists’ Rights In The Age Of AI, Recording Academy (Aug. 9, 2024, 8:44 AM), https://www.recordingacademy.com/advocacy/news/no-fakes-act-introduced-in-the-senate.
[11] Press Release, Chris Coons, Senators Coons, Blackburn, Klobuchar, Tillis Introduce Bill to Protect Individuals’ Voices and Likenesses from AI-Generated Replicas (July 31, 2024), https://www.coons.senate.gov/news/press-releases/senators-coons-blackburn-klobuchar-tillis-introduce-bill-to-protect-individuals-voices-and-likenesses-from-ai-generated-replicas.
[12] Id.
[13] Id.
[14] Samuel Cohen, Closer to a Federal Right of Publicity – Senate Introduces NO FAKES Act, Sheppard, Mullin, Richter & Hampton LLP (Aug. 14, 2024), https://www.ailawandpolicy.com/2024/08/closer-to-a-federal-right-of-publicity-senate-introduces-no-fakes-act/.
[15] Id.
[16] Joseph E. Martineau et al., Newly Proposed Federal Legislation to Curtail the Uprise in Deep Fakes and What it Means for Businesses and Individuals, Lewis Rice LLC (Sept. 3, 2024), https://www.lewisrice.com/publications/newly-proposed-federal-legislation-to-curtail-the-uprise-in-deep-fakes-and-what-it-means-for-businesses-and-individuals/.
[17] Id.
[18] Id.
[19] Suzie Dunn, Women, Not Politicians, Are Targeted Most Often by Deepfake Videos, CIGI (Mar. 3, 2021), https://www.cigionline.org/articles/women-not-politicians-are-targeted-most-often-deepfake-videos/.
[20] Id.
[21] Drew Harwell, Fake-porn videos are being weaponized to harass and humiliate women: ‘Everybody is a potential target,’ The Washington Post (Dec. 30, 2018), https://www.washingtonpost.com/technology/2018/12/30/fake-porn-videos-are-being-weaponized-harass-humiliate-women-everybody-is-potential-target/.
[22] 2023 State of Deepfakes: Realities, Threats, and Impact, Security Hero, https://www.securityhero.io/state-of-deepfakes/#welcome (last visited Mar. 17, 2025).
[23] Dunn, supra note 19.
[24] Harwell, supra note 21.
[25] Id.
[26] Id.
[27] Kat Tenbarge, Hundreds of sexual deepfake ads using Emma Watson’s face ran on Facebook and Instagram in the last two days, NBC News (Mar. 7, 2023, 1:10 PM), https://www.nbcnews.com/tech/social-media/emma-watson-deep-fake-scarlett-johansson-face-swap-app-rcna73624.
[28] Id.
[29] Id.
[30] Id.
[31] Dunn, supra note 19.
[32] Security Hero, supra note 22.
[33] Laura Snapes, AI song featuring fake Drake and Weeknd vocals pulled from streaming services, The Guardian (Apr. 18, 2023), https://www.theguardian.com/music/2023/apr/18/ai-song-featuring-fake-drake-and-weeknd-vocals-pulled-from-streaming-services.
[34] Id.
[35] Id.
[36] Id.
[37] CVL Economics, supra note 4.
[38] Id.
[39] Id.
[40] Id.
[41] Breen & Love, supra note 5.
[42] Martineau et al., supra note 16.