S. 1367: NO FAKES Act of 2025

The NO FAKES Act of 2025 would create a new federal property right over a person's "digital replica," meaning a newly created, computer-generated, highly realistic electronic representation that is readily identifiable as that person's voice or visual likeness. The bill covers "an individual" defined as a human being, living or dead. It applies when a person did not actually perform, or when a real performance was materially altered, but it excludes authorized remixes, mastering, and digital remastering.

For living people, the right cannot be assigned away during life, though it can be licensed. Those licenses have tight limits: for adults, a license can last no more than 10 years and must be in writing, signed, and reasonably specific about intended uses. For minors, the cap is even shorter: no more than 5 years, and the license ends when the person turns 18. Minor licenses also must be in writing, signed, specifically describe the uses, and be court-approved under State law. After death, the right lasts 10 years, with renewable 5-year extensions if the right holder shows "active and authorized public use" during the 2-year period before expiration. Even with renewals, the right ends no later than 70 years after death.

The bill also sets up a notice-and-takedown system for online services. To get safe harbor, a covered online service must adopt a policy for terminating repeat violators and must remove or disable access to unauthorized material as soon as technically and practically feasible after getting notice. A provider is generally liable only after receiving a notification of a violation or a court order and failing to act, or if it willfully avoids receiving notice. The bill defines a "digital fingerprint" as a unique electronic label or identifier created by a cryptographic hash function or another digital method chosen by the service, as long as it is effectively certain not to misidentify one piece of material as another. At the same time, the bill punishes abuse of the takedown process: knowingly false notices, or notices sent without a good-faith review, trigger a penalty of the greater of $25,000 per notification or actual damages and attorney's fees.

Enforcement is built around civil lawsuits with set dollar amounts. A right holder can sue within 3 years of when the violation was discovered or should have been discovered. Damages are pegged to the type of defendant: $5,000 per work for individuals, $25,000 per work for compliant online service providers, $5,000 per instance for non-compliant online service providers up to $750,000 per work, and $25,000 per work for non-service entities. Courts can also award punitive damages for willful conduct involving malice, fraud, or knowledge. Prevailing plaintiffs get attorney's fees, and prevailing defendants must get attorney's fees if the case was not brought in good faith. The bill preempts many state-law likeness claims in expressive works, but it preserves state laws or common-law rules already in existence as of January 2, 2025, plus state laws aimed specifically at sexually explicit digital replicas or election-related digital replicas.