The Senate Judiciary Committee approved a new bill this week that seeks to prevent unauthorized deepfakes of American artists, performers and public figures. While the bill sailed through a committee voice vote, both Senators and outside groups say they’re worried it could become a tool for the powerful to quash free speech. 

The NO FAKES Act, introduced by Sens. Chris Coons, D-Del., and Marsha Blackburn, R-Tenn., would give Americans near-exclusive rights to their own digital AI replicas, and those rights live on, passing to heirs, executors and estates for at least 70 years after an individual dies.

While living, creators would be able to essentially license their likeness and image to others, over 10-year contracts for adults and 5 years for minors.

It would also permit individuals to sue anyone who uses their AI-generated image without permission, and pay up to $750,000 for violations. Blackburn submitted letters of support for the bill from more than 40 groups, including the Screen Actors Guild – American Federation of Television and Radio Artists, the American Medical Association, Creative Artists Agency, the Broadcasters’ Associations and the Human Artistry Campaign.

“It is imperative that we put this national standard in place for voice and visual likeness protection of creators, to protect from proliferation of harmful AIgenerated deepfakes that are created without their consent,” said Blackburn in a Thursday markup of the bill.

The introduction of consumer-grade AI tools has made it trivial to create convincing deepfakes of real individuals and public figures. The harms are well documented: bad actors have used them to create nonconsensual pornography or sexualized media of people they know, create child sexual assault material (CSAM) , and blackmail or humiliate individuals.

Artists have faced real challenges in the AI era when it comes to controlling their digital likeness. Last year, the Better Business Bureau warned that its Scam Tracker had been flooded with complaints about AI-celebrity endorsement scams. These included  deepfakes of Oprah Winfrey promoting weight loss products, Kim Kardashian pleading for donations to fight California wildfires, and pop star Taylor Swift and celebrity chef Gordon Ramsay endorsing cookware.

In the political arena, candidates now create deepfakes of their political opponents, putting words into their mouths or placing them in embarrassing or humiliating situations. Online, disinformation actors have repeatedly spread AI-generated videos and images of politicians like Donald Trump, Kamala Harris, and even regional or local politicians saying or doing scandalous things.

The bill represents one of the most aggressive attempts by U.S. policymakers to protect the digital commercial rights of artists and public figures. New York, for instance, passed a law this month that requires film and television advertisers to publicize when they’re using deepfakes in ads, but does not create a similar copyright regime for artists’ likeness. A Tennessee law, The ELVIS Act, that prohibits the unauthorized use of an individual’s voice and likeness and creates secondary liability for large platforms that publish or distribute the content.

The NO FAKES Act faces opposition from an alliance of tech business and digital rights groups. They argue the bill  fails to balance the commercial rights of artists to control their own image with longstanding First Amendment constitutional rights to free speech and parody.

Amy Bos, vice president of government affairs at NetChoice, a trade association for online businesses, said that while her group supports legislation that prevents unauthorized AI generated deepfakes, “good intentions do not make good law.”

“As written, this bill creates a dangerous financial incentive for platforms to aggressively over-remove lawful content, burdens creators with an unworkable counter-notification system, and fails to deliver the uniform national standard its sponsors promised,” Bos said in a statement.

Many digital civil groups agree with that view. A broad coalition of policy groups – including the American Civil Liberties Union, the R-Street Foundation, the Center for Democracy and Technology, the Electronic Frontier Foundation and others – wrote to the Senate Judiciary Committee this week to urge members to oppose the bill in its current form.

They argued the current bill creates a “Heckler’s veto” over most online content, allowing artists, public figures and advocacy groups to flood the notification system with takedown requests for content they don’t like. Similar to a law already on the books, the Digital Millenium Copyright Act, virtually all the incentives in the bill push platforms to be overaggressive in taking down content, regardless of whether it violates the law or not.

This approach could end up quashing not just unauthorized ads but also scores of other likely First Amendment protected uses, such as education, humor, satire and parody.

In 2023, a humorous AI-generated image of Pope Francis in a puffy Balenciaga jacket went viral. Under the NO FAKES Act, the coalition says that post would be illegal for anyone to post until nearly 2100.

In the political arena, both Republicans like Trump and Democrats like California Governor Gavin Newsom have used AI deepfakes to skewer their political opposition.

“A law that undermines free expression will struggle to survive constitutional review,” the groups wrote. “In the meantime, it can do lasting damage, both to lawful speech and to the autonomy of the people it claims to protect. We urge the Committee not to advance the NO FAKES Act in its current form, to examine how existing state and federal law already addresses the legitimate harms the bill seeks to address, and to pursue narrowly tailored solutions only where a genuine gap remains. We would welcome the opportunity to assist.”

While the bill passed by voice vote and with broad support, multiple Republican and Democratic members of the committee said they had similar concerns and expressed a desire to continue tweaking the bill further before passage into law.

In the Senate meeting, Coons appeared to dismiss those charges, arguing that changes made to the bill ahead of markup adequately address any First Amendment concerns.

“I want to be clear, NO FAKES includes features that protect free speech,” Coons claimed. “Parody, satire documentaries, biopics, newscasts, they’re all protected and we built in appropriate counter notification processes and exempted research libraries and archives.”