,,ii #aahth ,,congress #b;d ,session ,s4 #dhge ,,in ,,the ,,senate ,,of ,,the ,,united ,,states ,july #ca1 #bjbd,mr4 ,coons 7for himself1 ,mrs4 ,blackburn1 ,ms4 ,klobuchar1 and ,mr4 ,tillis7 introduced the following bill2 which was read twice and referred to the ,committee on the ,judiciary ,a ,,bill ,to protect intellectual property rights in the voice and visual likeness of individuals1 and for other purposes4 #a4 ,short title ,this ,act may be cited as the ,nurture ,originals1 ,foster ,art1 and ,keep ,entertainment ,safe ,act of #bjbd or the ,,no ,,fakes ,act of #bjbd4 #b4 ,voice and visual likeness rights 7a7 ,definitions ,in this section3 7#a7 ,digital replica ,the term digital replica means a newly-created1 computer-generated1 highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that-- 7,a7 is embodied in a sound recording1 image1 audiovisual work1 including an audiovisual work that does not have any accompanying sounds1 or transmission-- 7i7 in which the actual individual did not actually perform or appear2 or 7ii7 that is a version of a sound recording1 image1 or audiovisual work in which the actual individual did perform or appear1 in which the fundamental character of the performance or appearance has been materially altered2 and 7,b7 does not include the electronic reproduction1 use of a sample of one sound recording or audiovisual work into another1 remixing1 mastering1 or digital remastering of a sound recording or audiovisual work authorized by the copyright holder4 7#b7 ,individual ,the term individual means a human being1 living or dead4 7#c7 ,online service ,the term online service means-- 7,a7 7i7 any public-facing website1 online application1 mobile application1 or virtual reality environment that predominantly provides a community forum for user generated content1 such as sharing videos1 images1 games1 audio files1 or other material2 or 7ii7 a digital music provider1 as defined in section #aae7;e7 of title #ag1 ,united ,states ,code2 and 7,b7 may include a social media service1 social network1 or application store2 provided1 however1 that the term does not include a service by wire or radio that provides the capability to transmit data to and receive data from all1 or substantially all1 internet endpoints1 including any capabilities that are incidental to enable the operation of the communications service of a provider of online services or network access1 or the operator of facilities for such service4 7#d7 ,production ,the term production means the creation of a digital replica4 7#e7 ,right holder ,the term right holder means the individual whose voice or visual likeness is at issue with respect to a digital replica and any other person that has acquired1 through a license1 inheritance1 or otherwise1 the right to authorize the use of such voice or visual likeness in a digital replica4 7#f7 ,sound recording artist ,the term sound recording artist means an individual who creates or performs in sound recordings for economic gain or for the livelihood of the individual4 7b7 ,digital replication right 7#a7 ,in general ,subject to the other provisions of this section1 each individual or right holder shall have the right to authorize the use of the voice or visual likeness of the individual in a digital replica4 7#b7 ,nature of right 7,a7 ,in general ,the right described in paragraph 7#a7 shall have the following characteristics3 7i7 ,the right is-- 7,i7 a property right2 7,,ii7 not assignable during the life of the individual2 and 7,,iii7 licensable1 in whole or in part1 exclusively or non-exclusively1 by the right holder4 7ii7 ,the right shall not expire upon the death of the individual1 without regard to whether the right is commercially exploited by the individual during the individual's lifetime4 7iii7 ,upon the death of the individual-- 7,i7 the right is transferable and licensable1 in whole or in part1 by the executors1 heirs1 assigns1 licensees1 or devisees of the individual2 and 7,,ii7 ownership of the right may be-- 7aa7 transferred1 in whole or in part1 by any means of conveyance or by operation of law2 and 7bb7 bequeathed by will or pass as personal property by the applicable laws of intestate succession4 7iv7 ,the right shall be exclusive to-- 7,i7 the individual1 subject to the licensing of the right during the lifetime of that individual under subparagraph 7,b72 and 7,,ii7 the right holder-- 7aa7 for a period of #aj years after the death of the individual2 and 7bb7 if the right holder demonstrates active and authorized public use of the voice or visual likeness of the individual during the #b-year period preceding the expiration of the #aj-year period described in item 7aa71 for an additional #e-year period1 subject to renewal for additional #e-year periods1 provided the right holder can demonstrate authorized public use of the voice or visual likeness of the individual during the #b-year period preceding the expiration of each additional #e-year period4 7v7 ,the right shall terminate on the date that is the earlier of-- 7,i7 the date on which the #aj-year period or #e-year period described in clause 7iv77,,ii7 terminates without renewal2 or 7,,ii7 the date that is #gj years after the death of the individual4 7,b7 ,requirements for license 7i7 ,in general ,a license described in subparagraph 7,a77i77,,iii7-- 7,i7 while the individual is living1 is valid only to the extent that the license duration does not exceed #aj years2 and 7,,ii7 shall be valid only if the license agreement-- 7aa7 is in writing and signed by the individual or an authorized representative of the individual2 and 7bb7 includes a reasonably specific description of the intended uses of the applicable digital replica4 7ii7 ,licenses involving a minor ,a license described in subparagraph 7,a77i77,,iii7 involving a living individual who is younger than #ah years of age-- 7,i7 is valid only to the extent that the license duration does not exceed #e years1 but in any case terminates when the individual reaches #ah years of age2 7,,ii7 shall be valid only if the license agreement-- 7aa7 is in writing and signed by the individual or an authorized representative of the individual2 and 7bb7 includes a reasonably specific description of the intended uses of the digital replica2 and 7,,iii7 the license is approved by a court in accordance with applicable ,state law4 7iii7 ,collective bargaining agreements ,the provisions of clauses 7i7 and 7ii7 shall not apply if the license is governed by a collective bargaining agreement that addresses digital replicas4 7iv7 ,limitation ,the provisions of clauses 7i7 and 7ii7 shall not affect terms and conditions of a license or related contract other than those described in this subparagraph1 and the expiration of such license does not affect the remainder of the license or related contract4 7,c7 ,requirements for post-mortem transfer ,a post-mortem transfer or license described in subparagraph 7,a77iii77,i7 shall be valid only if the transfer agreement or license agreement is in writing and signed by the right holder or an authorized representative of the right holder4 7,d7 ,registration for post-mortem renewal 7i7 ,in general ,the renewal of a post-mortem right under subparagraph 7,a77iv77,,ii77bb7 shall be effective if1 during the applicable #b-year renewal period specified in that subparagraph1 the right holder files a notice with the ,register of ,copyrights that complies with such requirements regarding form and filing procedures as the ,register of ,copyrights may prescribe by regulation and that contains-- 7,i7 the name of the deceased individual2 7,,ii7 a statement1 under penalty of perjury1 that the right holder has engaged in active and authorized public use of the voice or visual likeness during the applicable #b-year period2 7,,iii7 the identity of and contact information for the right holder2 and 7,,iv7 such other information as the ,register of ,copyrights may prescribe by regulation4 7ii7 ,directory ,the ,register of ,copyrights-- 7,i7 shall-- 7aa7 maintain a current directory of post-mortem digital replication rights registered under this subparagraph2 and 7bb7 make the directory described in item 7aa7 available to the public for inspection online2 and 7,,ii7 may require payment of a reasonable filing fee by the registrant1 which may take into consideration the costs of maintaining the directory described in subclause 7,i74 7iii7 ,voluntary initial registration 7,i7 ,in general ,the right holder may voluntarily register the post-mortem right under subparagraph 7,a77iv77,,ii77aa7 by filing a notice with the ,register of ,copyrights that complies with such requirements regarding form1 content1 and filing procedures as the ,register of ,copyrights may prescribe by regulation4 7,,ii7 ,authority of ,register of ,copyrights ,the ,register of ,copyrights may-- 7aa7 include a voluntary registration of the post-mortem right under subparagraph 7,a77iv77,,ii77aa7 in the directory required by clause 7ii77,i77aa72 and 7bb7 require payment of a reasonable filing fee by the registrant1 which may take into consideration the costs of maintaining the directory4 7iv7 ,authority of ,register of ,copyrights ,the ,register of ,copyrights may make such interpretations and resolve such ambiguities as may be appropriate to carry out this subparagraph4 7,e7 ,post-expiration or termination utilization of authorized uses ,a digital replica that is embodied in a sound recording1 image1 audiovisual work1 including an audiovisual work that does not have any accompanying sounds1 or transmission1 and the use of which is authorized pursuant to the terms of a license1 may continue to be utilized in a manner consistent with the terms of that license after the expiration or termination of the license4 7c7 ,liability 7#a7 ,in general ,any person that1 in a manner affecting interstate commerce 7or using any means or facility of interstate commerce71 engages in an activity described in paragraph 7#b7 shall be liable in a civil action brought under subsection 7e74 7#b7 ,activities described ,an activity described in this paragraph is either of the following3 7,a7 ,the production of a digital replica without consent of the applicable right holder4 7,b7 ,the publication1 reproduction1 display1 distribution1 transmission of1 or otherwise making available to the public1 a digital replica without consent of the applicable right holder4 7#c7 ,knowledge required ,to incur liability under this subsection1 a person engaging in an activity shall have actual knowledge1 which could be obtained through a notification that satisfies subsection 7d77#c71 or shall willfully avoid having such knowledge1 that-- 7,a7 the applicable material is a digital replica2 and 7,b7 the digital replica was not authorized by the applicable right holder4 7#d7 ,exclusions 7,a7 ,in general ,it shall not be a violation of paragraph 7#a7 if-- 7i7 the applicable digital replica is produced or used in a bona fide news1 public affairs1 or sports broadcast or account1 provided that the digital replica is the subject of1 or is materially relevant to1 the subject of such broadcast or account2 7ii7 the applicable digital replica is a representation of the applicable individual as the individual in a documentary or in a historical or biographical manner1 including some degree of fictionalization1 unless-- 7,i7 the production or use of that digital replica creates the false impression that the work is an authentic sound recording1 image1 transmission1 or audiovisual work in which the individual participated2 or 7,,ii7 the digital replica is embodied in a musical sound recording that is synchronized to accompany a motion picture or other audiovisual work1 except to the extent that the use of that digital replica is protected by the ,first ,amendment to the ,constitution of the ,united ,states2 7iii7 the applicable digital replica is produced or used consistent with the public interest in bona fide commentary1 criticism1 scholarship1 satire1 or parody2 7iv7 the use of the applicable digital replica is fleeting or negligible2 or 7v7 the applicable digital replica is used in an advertisement or commercial announcement for a purpose described in any of clauses 7i7 through 7iv7 and the applicable digital replica is relevant to the subject of the work so advertised or announced4 7,b7 ,applicability ,subparagraph 7,a7 shall not apply where the applicable digital replica is used to depict sexually explicit conduct1 as defined in section #bbef7b77;,a7 of title #ah1 ,united ,states ,code4 7d7 ,safe harbors 7#a7 ,in general 7,a7 ,products and services capable of producing digital replicas ,no person shall be secondarily liable for a violation of this section for manufacturing1 importing1 offering to the public1 providing1 or otherwise distributing a product or service unless the product or service-- 7i7 is primarily designed to produce #a or more unauthorized digital replicas2 7ii7 has only limited commercially significant purpose or use other than to produce an unauthorized digital replica2 or 7iii7 is marketed1 advertised1 or otherwise promoted by that person or another acting in concert with that person with that person's knowledge for use in producing an unauthorized digital replica4 7,b7 ,referral or linking ,an online service shall not be liable for violating the right described in subsection 7b7 by referring or linking a user to an unauthorized digital replica1 or by carrying out an activity described in subsection 7c77#b71 if1 upon receiving a notification described in paragraph 7#c71 the online service removes or disables access to the material that is claimed to be an unauthorized digital replica as soon as is technically and practically feasible for that online service4 7,c7 ,online services hosting user-uploaded material ,an online service shall not be liable for violating the right described in subsection 7b7 by storing third-party provided material that resides on a system or network controlled or operated by or for the online service1 if1 upon receiving a notification that satisfies paragraph 7#c71 the online service-- 7i7 removes1 or disables access to1 all instances of the material 7or an activity using the material7 that is claimed to be an unauthorized digital replica as soon as is technically and practically feasible for that online service2 and 7ii7 having done so1 takes reasonable steps to promptly notify the third-party that provided the material that the online service has removed or disabled access to the material4 7#b7 ,designated agent 7,a7 ,in general ,the limitations on liability established under this subsection shall apply to an online service only if the online service has designated an agent to receive notifications under paragraph 7#c71 by making available through the online service1 including on the website of the online service in a location accessible to the public1 and by providing to the ,copyright ,office1 substantially the following information3 7i7 ,the name1 address1 telephone number1 and electronic mail address of the agent4 7ii7 ,other contact information that the ,register of ,copyrights may determine appropriate4 7,b7 ,directory ,the ,register of ,copyrights-- 7i7 shall-- 7,i7 maintain a current directory of designated agents for the purposes of this paragraph2 and 7,,ii7 make the directory described in subclause 7,i7 available to the public for inspection1 including through the internet2 and 7ii7 may require payment of a fee by online services to cover the costs of maintaining the directory described in clause 7i77,i74 7#c7 ,elements of notification ,to be effective under this subsection1 a notification of a claimed violation of the right described in subsection 7b7 shall be a written communication provided to the designated agent of an online service that includes the following3 7,a7 ,a physical or electronic signature of the right holder1 a person authorized to act on behalf of the right holder1 or an eligible plaintiff under subsection 7e77#a74 7,b7 ,identification of the individual1 the voice or visual likeness of whom is being used in an unauthorized digital replica4 7,c7 ,identification of the material containing an unauthorized digital replica1 including information sufficient to allow the online service to locate the allegedly unauthorized digital replica4 7,d7 ,information reasonably sufficient to permit the online service to contact the notifying party1 such as an address1 telephone number1 and electronic mail address4 7,e7 ,a statement that the notifying party believes in good faith that the material is an unauthorized use of a digital replica4 7,f7 ,if not the right holder or an eligible plaintiff under subsection 7e77#a71 a statement that the notifying party has the authority to act on behalf of the right holder4 7,g7 ,for the purposes of paragraph 7#a77;,b71 information reasonably sufficient to-- 7i7 identify the reference or link to the material or activity claimed to be an unauthorized digital replica that is to be removed or to which access is to be disabled2 and 7ii7 permit the online service to locate the reference or link described in clause 7i74 7#d7 ,penalties for false or deceptive notice 7,a7 ,in general ,it shall be unlawful to knowingly materially misrepresent under paragraph 7#c7-- 7i7 that the material requested to be removed is an unauthorized digital replica2 7ii7 that a person has the authority to act on behalf of the right holder2 or 7iii7 that a digital replica is not authorized by the right holder or by other law4 7,b7 ,penalties ,any person that violates subparagraph 7,a7 shall be liable for an amount equal to the greater of-- 7i7 #e1jjj2 or 7ii7 any actual damages1 including costs and attorney's fees1 incurred by the alleged violator1 as well as by any online service injured by the reliance of the online service on the misrepresentation in removing or disabling access to the material or activity claimed to be an unauthorized digital replica4 7e7 ,civil action 7#a7 ,eligible plaintiffs ,a civil action for a violation of this section may be brought by-- 7,a7 a right holder2 7,b7 if the individual is younger than #ah years of age1 a parent or guardian of the individual2 7,c7 any other person that controls1 including by virtue of a license1 the right to authorize the use of the voice or visual likeness of the right holder described in subparagraph 7,a72 7,d7 any other person that owns or controls the right to authorize the use of the voice or visual likeness of a deceased individual described in subparagraph 7,a72 or 7,e7 in the case of a digital replica involving a sound recording artist1 any person that has1 directly or indirectly1 entered into-- 7i7 a contract for the exclusive personal services of the sound recording artist as a sound recording artist2 or 7ii7 an exclusive license to distribute or transmit #a or more works that capture the audio performance of the sound recording artist4 7#b7 ,limitations period ,a civil action may not be brought under this subsection unless the action is commenced not later than #c years after the date on which the party seeking to bring the civil action discovered1 or with due diligence should have discovered1 the applicable violation4 7#c7 ,defense not permitted ,it shall not be a defense in a civil action brought under this subsection that the defendant displayed or otherwise communicated to the public a disclaimer stating that the applicable digital replica was unauthorized or disclosing that the digital replica was generated through the use of artificial intelligence or other technology4 7#d7 ,remedies 7,a7 ,in general ,in any civil action brought under this subsection-- 7i7 an individual or entity that engages in an activity described in subsection 7c77#b7 shall be liable to the injured party in an amount equal to the greater of-- 7,i7 7aa7 in the case of an individual1 #e1jjj per work embodying the applicable unauthorized digital replica2 7bb7 in the case of an entity that is an online service1 #e1jjj per violation2 and 7cc7 in the case of an entity that is not an online service1 #be1jjj per work embodying the applicable unauthorized digital replica2 or 7,,ii7 any actual damages suffered by the injured party as a result of the activity1 plus any profits from the unauthorized use that are attributable to such use and are not taken into account in computing the actual damages2 7ii7 the plaintiff may seek injunctive or other equitable relief2 7iii7 in the case of willful activity in which the injured party has proven that the defendant acted with malice1 fraud1 knowledge1 or willful avoidance of knowledge that the conduct violated the law1 the court may award to the injured party punitive damages2 and 7iv7 if the prevailing party is-- 7,i7 the party bringing the action1 the court shall award reasonable attorney's fees2 or 7,,ii7 the party defending the action1 the court shall award reasonable attorney's fees if the court determines that the action was not brought in good faith4 7,b7 ,violation defined ,for purposes of this paragraph1 violation means each display1 copy made1 transmission1 and each instance of the unauthorized digital replica being otherwise made available on the online service1 unless the online service has taken reasonable steps to remove1 or disable access to1 the unauthorized digital replica as soon as is technically and practically feasible for the online service upon acquiring knowledge as set forth in subsection 7c77#c74 7,c7 ,objectively reasonable belief ,an online service that has an objectively reasonable belief that material that is claimed to be an unauthorized digital replica does not qualify as a digital replica under subsection 7a77#a7 shall not be liable for statutory or actual damages exceeding #a1jjj1jjj1 regardless of whether the material is ultimately determined to be an unauthorized digital replica4 7,d7 ,replacement of removed material ,in the event that the third-party that provided the material that the online service has removed or to which the online service has disabled access files a lawsuit in a court of the ,united ,states against the sender of a notice under subsection 7d77#c7 claiming that such notice was false or deceptive as provided in subsection 7d77#d71 the online service may1 provided that the lawsuit was filed not later than #ad days after the user receives notice that the online service has removed or disabled access to the material1 restore the removed material to its network for access by members of the public without monetary liability therefor to either the notice sender or the third-party that provided the material that the online service had removed or disabled access4 7f7 ,preemption 7#a7 ,in general ,the rights established under this ,act shall preempt any cause of action under ,state law for the protection of an individual's voice and visual likeness rights in connection with a digital replica1 as defined in this ,act1 in an expressive work4 7#b7 ,rule of construction ,notwithstanding paragraph 7#a71 nothing in this ,act may be construed to preempt-- 7,a7 causes of action under ,state statutes or common law in existence as of ,january #b1 #bjbe1 regarding a digital replica1 as defined in this ,act2 7,b7 causes of action under ,state statutes specifically regulating a digital replica depicting sexually explicit conduct1 as defined in section #bbef7b77;,a7 of title #ah1 ,united ,states ,code1 or an election-related digital replica2 or 7,c7 causes of action under ,state statutes or common law for the manufacturing1 importing1 offering to the public1 providing1 making available1 or otherwise distributing a product or service capable of producing #a or more digital replicas4 7g7 ,rule of construction ,this section shall be considered to be a law pertaining to intellectual property for the purposes of section #bcj7;e77#b7 of the ,communications ,act of #aicd 7#dg ,u4,s4,c4 #bcj7;e77#b774 7h7 ,severability ,if any provision of this section1 or the application of a provision of this section1 is held to be invalid1 the validity of the remainder of this section1 and the application of that provision to other persons and circumstances1 shall not be affected by that holding4 7i7 ,retroactive effect 7#a7 ,liabilities ,liability under this section shall apply only to-- 7,a7 conduct occurring after the date of enactment of this ,act2 and 7,b7 in the case of conduct covered by a license or contract1 a license or contract that is executed after the date of enactment of this ,act4 7#b7 ,digital replication right ,the right granted under subsection 7b7-- 7,a7 shall apply to any individual1 regardless of whether the individual dies before or after the date of enactment of this ,act2 and 7,b7 in the case of a right holder who has died before the date of enactment of this ,act1 shall vest in the executors1 heirs1 assigns1 or devisees of the right holder4 7j7 ,effective date ,this ,act shall take effect on the date that is #ahj days after the date of enactment of this ,act4