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[Congressional Bills 119th Congress]
[From the U.S. Government Publishing Office]
[H.R. 8915 Introduced in House (IH)]
<DOC>
119th CONGRESS
2d Session
H. R. 8915
To protect intellectual property rights in the voice and visual
likeness of individuals, and for other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
May 20, 2026
Ms. Salazar (for herself, Ms. Dean of Pennsylvania, Mr. Moran, Mr.
Morelle, Ms. Balint, Mr. Wittman, Mr. Moskowitz, Ms. Friedman, Ms. Lee
of Nevada, and Ms. Lee of Florida) introduced the following bill; which
was referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To protect intellectual property rights in the voice and visual
likeness of individuals, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Nurture Originals, Foster Art, and
Keep Entertainment Safe Act of 2026'' or the ``NO FAKES Act of 2026''.
SEC. 2. VOICE AND VISUAL LIKENESS RIGHTS.
(a) Definitions.--In this section:
(1) Digital fingerprint.--The term ``digital fingerprint''
means an electronic label or identifier created by a
cryptographic hash function (or similar function), or any other
digital process, tool, or technique selected by the provider of
an online service, that is unique to a specific piece of
material such that it is effectively certain that such piece of
material will not be misidentified as a match for a different
piece of material.
(2) Digital replica.--The term ``digital replica''--
(A) means a newly created, computer-generated,
highly realistic electronic representation that is
readily identifiable as the voice or visual likeness of
an individual that--
(i) is embodied in a sound recording,
image, audiovisual work, including an
audiovisual work that does not have any
accompanying sounds, or transmission--
(I) in which the actual individual
did not actually perform or appear; or
(II) that is a version of a sound
recording, image, or audiovisual work
in which the actual individual did
perform or appear, in which the
fundamental character of the
performance or appearance has been
materially altered; and
(B) does not include the electronic reproduction,
use of a sample of one sound recording or audiovisual
work into another, remixing, mastering, or digital
remastering of a sound recording or audiovisual work
authorized by the copyright holder.
(3) Individual.--The term ``individual'' means a human
being, living or dead.
(4) Interactive computer service.--The term ``interactive
computer service'' means any information service, system, or
access software provider that provides or enables computer
access by multiple users to a computer server, including
specifically--
(A) a service or system that provides access to the
internet; and
(B) such systems operated, or services offered, by
libraries or educational institutions.
(5) Online service.--The term ``online service''--
(A) means--
(i) any website, online application, mobile
application, or virtual reality environment
that predominantly provides public access to
user uploaded material;
(ii) any digital music provider to which
section 115 of title 17, United States Code,
applies, to the extent that the digital music
provider provides public access to a
significant amount of sound recordings that are
predominantly the fixation of sounds of a
performance of a musical composition and are
user uploaded material, if that digital music
provider is not covered under clause (i); and
(iii) any online application, mobile
application, virtual reality environment,
application store, search engine (including any
feature that provides web search results),
advertising service or network, online shopping
service or platform, electronic commerce
provider, mapping service, cloud storage
service, aggregator of visual and audiovisual
works for licensing, or website hosting service
or any other interactive computer service that
is not covered under clause (i), and is not a
digital music provider to which section 115 of
title 17, United States Code, applies, but only
if the provider of that interactive computer
service has registered a designated agent with
the Copyright Office under subsection (d)(2);
and
(B) does not include any website, online
application, mobile application, virtual reality
environment, application store, cloud storage service,
or search engine, if the primary function of that
website, online application, mobile application,
virtual reality environment, application store, cloud
storage service, or search engine is to distribute,
import, transmit, or otherwise make available to the
public a product or service described in subsection
(c)(2)(B).
(6) Right holder.--The term ``right holder'' means--
(A) the individual, the voice or visual likeness of
whom is at issue with respect to a digital replica or a
product or service described in subsection (c)(2)(B);
and
(B) any other individual or entity that has
acquired, through a license, inheritance, or otherwise,
the right to authorize the use of the voice or visual
likeness described in subparagraph (A).
(7) 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
individual.
(8) User uploaded material.--The term ``user uploaded
material'' means material, such as a video, image, game, audio
file, or other similar material, that is placed on a service
directly by, or at the direction of, a consumer end user of a
service.
(b) Digital Replication Right.--
(1) In general.--Subject to the other provisions of this
section, each individual or right holder shall have the right
to authorize the use of the voice or visual likeness of the
individual--
(A) in a digital replica; or
(B) in connection with a product or service for
which authorization of the individual or right holder
is required to avoid liability with respect to an
activity described in subsection (c)(2)(B).
(2) Nature of right.--
(A) In general.--The right described in paragraph
(1) shall have the following characteristics:
(i) The right is--
(I) a property right;
(II) not assignable during the life
of the individual; and
(III) licensable, in whole or in
part, exclusively or non-exclusively,
by the right holder.
(ii) The right shall not expire upon the
death of the individual, without regard to
whether the right is commercially exploited by
the individual during the lifetime of the
individual.
(iii) Upon the death of the individual--
(I) the right is transferable and
licensable, in whole or in part, by the
executors, heirs, assignees, licensees,
or devisees of the individual; and
(II) ownership of the right may
be--
(aa) transferred, in whole
or in part, by any means of
conveyance or by operation of
law; and
(bb) bequeathed by will or
pass as personal property by
the applicable laws of
intestate succession.
(iv) The right shall be exclusive to--
(I) the individual, subject to the
licensing of the right during the
lifetime of that individual under
subparagraph (B); and
(II) the right holder--
(aa) for a period of 10
years after the death of the
individual; and
(bb) if the right holder
demonstrates active and
authorized public use of the
voice or visual likeness of the
individual in interstate or
foreign commerce during the 2-
year period preceding the
expiration of the 10-year
period described in item (aa),
for an additional 5-year
period, subject to renewal for
additional 5-year periods,
provided the right holder can
demonstrate authorized public
use of the voice or visual
likeness of the individual in
interstate or foreign commerce
during the 2-year period
preceding the expiration of
each additional 5-year period.
(v) The right shall terminate on the date
that is the earlier of--
(I) the date on which the 10-year
period or 5-year period described in
clause (iv)(II) terminates without
renewal; or
(II) the date that is 70 years
after the death of the individual.
(B) Requirements for license.--
(i) In general.--A license described in
subparagraph (A)(i)(III)--
(I) while the individual is living,
is valid only to the extent that the
license duration does not exceed 10
years; and
(II) shall be valid only if the
license agreement--
(aa) is in writing and
signed by the individual or an
authorized representative of
the individual; and
(bb) includes a reasonably
specific description of the
intended uses of the applicable
digital replica.
(ii) Licenses involving a minor.--A license
described in subparagraph (A)(i)(III) involving
a living individual who is younger than 18
years of age--
(I) is valid only to the extent
that the license duration does not
exceed 5 years, but in any case
terminates when the individual reaches
18 years of age; and
(II) shall be valid only if the
license agreement--
(aa) is in writing and
signed by the individual or an
authorized representative of
the individual;
(bb) includes a reasonably
specific description of the
intended uses of the digital
replica; and
(cc) is approved by a court
in accordance with applicable
State law.
(iii) Collective bargaining agreements.--
The provisions of clauses (i) and (ii) shall
not apply with respect to a license if the
license is governed by a collective bargaining
agreement that addresses digital replicas.
(iv) Limitation.--The provisions of clauses
(i) and (ii) shall not affect terms and
conditions of a license or related contract
other than those described in this
subparagraph, and the expiration of that
license shall not affect the remainder of the
license or related contract.
(C) Requirements for post-mortem transfer.--A post-
mortem transfer or license described in subparagraph
(A)(iii)(I) 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 holder.
(D) Registration for post-mortem renewal.--
(i) In general.--The renewal of a post-
mortem right under subparagraph (A)(iv)(II)(bb)
shall be effective if, during the applicable 2-
year renewal period described in that
subparagraph, 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, which shall
include--
(I) the name of the deceased
individual;
(II) a statement, under penalty of
perjury, that the right holder has
engaged in active and authorized public
use of the voice or visual likeness in
interstate or foreign commerce during
the applicable 2-year period;
(III) the identity of and contact
information for the right holder; and
(IV) such other information as the
Register of Copyrights may prescribe by
regulation.
(ii) Directory.--The Register of
Copyrights--
(I) shall--
(aa) maintain a current
directory of post-mortem
digital replication rights
registered under this
subparagraph; and
(bb) make the directory
described in item (aa)
available to the public for
inspection online; and
(II) may require payment of a
reasonable filing fee by the right
holder filing notice under clause (i),
which may take into consideration the
costs of maintaining the directory
described in subclause (I) of this
clause.
(iii) Voluntary initial registration.--
(I) In general.--A right holder may
voluntarily register the post-mortem
right under subparagraph
(A)(iv)(II)(aa) by filing a notice with
the Register of Copyrights that
complies with such requirements
regarding form, content, and filing
procedures as the Register of
Copyrights may prescribe by regulation.
(II) Authority of register of
copyrights.--The Register of Copyrights
may--
(aa) include a voluntary
registration of the post-mortem
right under subparagraph
(A)(iv)(II)(aa) in the
directory maintained under
clause (ii)(I)(aa) of this
subparagraph; and
(bb) require payment of a
reasonable filing fee by a
right holder registering a
right under this clause, which
may take into consideration the
costs of maintaining the
directory.
(iv) 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
subparagraph.
(E) Post-expiration or termination utilization of
authorized uses.--A digital replica that is embodied in
a sound recording, image, audiovisual work, including
an audiovisual work that does not have any accompanying
sounds, or transmission, and the use of which is
authorized pursuant to the terms of a license, may
continue to be utilized in a manner consistent with the
terms of that license after the expiration or
termination of the license.
(c) Liability.--
(1) In general.--Any individual or entity that, in a manner
affecting interstate or foreign commerce (or using any means or
facility of interstate or foreign commerce), engages in an
activity described in paragraph (2) shall be liable in a civil
action brought under subsection (e).
(2) Activities described.--An activity described in this
paragraph is either of the following:
(A) The public display, distribution, transmission,
or communication of, or the act of otherwise making
available to the public, including by acting as a third
party commercial supplier of sound recordings to a
digital music provider, a digital replica without
authorization by the applicable right holder.
(B) Distributing, importing, transmitting, or
otherwise making available to the public a product or
service that--
(i) is primarily designed to produce 1 or
more digital replicas of a specifically
identified individual or individuals without
the authorization of--
(I) such individual or individuals;
(II) the applicable right holder;
or
(III) the law;
(ii) has only limited commercially
significant purpose or use other than to
produce a digital replica of a specifically
identified individual or individuals without
the authorization of--
(I) such individual or individuals;
(II) the applicable right holder;
or
(III) the law; or
(iii) is marketed, advertised, or otherwise
promoted by the individual or entity described
in paragraph (1), or another individual or
entity acting in concert with the individual or
entity described in paragraph (1) with the
knowledge of the individual or entity described
in paragraph (1), as a product or service
designed to produce a digital replica of a
specifically identified individual or
individuals without the authorization of--
(I) such individual or individuals;
(II) the applicable right holder;
or
(III) the law.
(3) Notice or knowledge required.--To incur liability under
this subsection, the following shall apply:
(A)(i) With respect to an activity carried out
under paragraph (2) by the provider of an online
service described in clause (ii), the designated agent
with respect to the provider must have received a
notification that satisfies the requirements under
subsection (d)(3), or a court order stating, or must
have willfully avoided receipt of such a notification
or court order, that the applicable material is--
(I) a digital replica that was not
authorized by the applicable right holder; or
(II) a product or service described in
paragraph (2)(B).
(ii) An online service described in this clause is
an online service that is--
(I) described in subsection (a)(5)(A)(i);
(II) described in subsection (a)(5)(A)(ii),
with respect to sound recordings that are
predominantly the fixation of sounds of a
performance of a musical composition and are
user uploaded material; or
(III) described in subsection
(a)(5)(A)(iii), with respect to material placed
on that online service by or at the direction
of a third party.
(B) With respect to an activity carried out under
paragraph (2) by an individual or entity that is not an
online service, or an activity carried out under
paragraph (2) by the provider of an online service that
is not described in subparagraph (A)(ii), the
individual or entity must have actual knowledge, or
must willfully avoid having such knowledge, that the
applicable material is--
(i) a digital replica that was not
authorized by the applicable right holder; or
(ii) a product or service described in
paragraph (2)(B).
(4) Exclusions.--Liability under this subsection shall not
extend to--
(A) a service by wire or radio that provides the
capability to transmit data to and receive data from
all, or substantially all, internet endpoints,
including any capabilities that are incidental to
enable the operation of the communications service of a
provider of online services or network access, or the
operator of facilities for such service;
(B) a provider of an online service described in
paragraph (3)(A)(ii) alleged to have undertaken an
activity described in paragraph (2) if--
(i) it is not technologically or
practically feasible for that provider to
disable access to the offending material, or
disable the reference or link to that material,
at the specific location identified in the
applicable notification sent under subsection
(d)(3); or
(ii) disabling access to the offending
material is prohibited by law;
(C) a nonprofit library or archives--
(i) that is eligible for the limitations on
exclusive rights under section 108 of title 17,
United States Code;
(ii) the collections of which are--
(I) open to the public; or
(II) available not only to
researchers affiliated with the library
or archives, or with the institution of
which the library or archives is a
part, but also to other persons doing
research in a specialized field;
(iii) that has a public service mission;
(iv) the trained staff or volunteers of
which provide professional services normally
associated with libraries and archives; and
(v) the collections of which are composed
of lawfully acquired or licensed materials that
are made available consistent with the
requirements of title 17, United States Code;
(D) an accredited nonprofit educational institution
with respect to an activity undertaken without any
purpose of direct or indirect commercial advantage;
(E) an employee of an institution described in
subparagraph (C) or (D) acting within the scope of the
employment of that individual;
(F) any other person solely with respect to
providing online or network access services to an
institution described in subparagraph (C) or (D) in the
course of providing those services to that institution;
or
(G) an individual or entity that is not an online
service, if, upon obtaining actual knowledge of an
activity described in paragraph (2), the individual or
entity acts as soon as technologically and practically
feasible to remove or disable access to the applicable
material.
(5) Additional exclusions.--
(A) In general.--An activity shall not be
considered to be an activity described in paragraph (2)
if--
(i) the applicable digital replica is
produced or used in a bona fide news, public
affairs, or sports broadcast or account,
provided that the digital replica is the
subject of, or is materially relevant to, the
subject of that broadcast or account;
(ii) the applicable digital replica is a
representation of the applicable individual as
the individual in a documentary or in a
historical or biographical manner, including
some degree of fictionalization, unless--
(I) the production or use of that
digital replica creates the false
impression that the work is an
authentic sound recording, image,
transmission, or audiovisual work in
which the individual participated; or
(II) the digital replica is
embodied in a musical sound recording
that is synchronized to accompany a
motion picture or other audiovisual
work, except to the extent that the use
of that digital replica is protected by
the First Amendment to the Constitution
of the United States;
(iii) the applicable digital replica is
produced or used consistent with the public
interest in bona fide commentary, criticism,
scholarship, satire, or parody;
(iv) the use of the applicable digital
replica is fleeting or negligible; or
(v) the applicable digital replica is used
in an advertisement or commercial announcement
for a purpose described in any of clauses (i)
through (iv) and the applicable digital replica
is relevant to the subject of the work so
advertised or announced.
(B) Applicability.--Subparagraph (A) shall not
apply where the applicable digital replica is used to
depict sexually explicit conduct, as defined in section
2256(2)(A) of title 18, United States Code.
(6) Voluntary use of tools to remove or disable access.--
The voluntary use of any tool to remove or disable access to
content shall not alone confer actual knowledge of a particular
violation of this section.
(d) Safe Harbors.--
(1) In general.--
(A) Products and services capable of producing
digital replicas.--No individual or entity shall be
directly or secondarily liable under this section for
an activity described in subsection (c)(2)(A) by virtue
of distributing, importing, transmitting, or otherwise
making available to the public a product or service
unless the product or service is a product or service
described in subsection (c)(2)(B).
(B) Online services.--The provider of an online
service shall not be liable for an activity that
violates subsection (c), or for referring or linking to
the material containing an unauthorized digital replica
or a product or service described in subsection
(c)(2)(B), if--
(i) for the provider of an online service
described in subsection (a)(5)(A)(iii) (other
than a search engine or a search component of a
service), the provider has adopted and
reasonably implemented, and has informed users
of the online service of, a policy that
provides for the termination in appropriate
circumstances of account holders of the online
service that are repeat violators of subsection
(c)(2), provided that the failure to terminate
a particular account holder in accordance with
that policy shall subject the provider of the
online service to potential liability only with
respect to violating content posted by that
account holder; and
(ii)(I) upon receiving a notification that
satisfies the requirements under paragraph (3),
the provider--
(aa) removes or disables access to
the work embodying the claimed
unauthorized digital replica or the
product or service specifically
identified in a notice sent under that
paragraph, or, as applicable, the link
or reference to the unauthorized
digital replica or product or service,
as soon as is technologically and
practically feasible for that provider;
(bb) for the provider of an online
service described in subsection
(a)(5)(A)(i), as soon as is
technologically and practically
feasible for that provider, removes or
disables access to all other publicly
available instances of the work
embodying the claimed unauthorized
digital replica that--
(AA) match the digital
fingerprint of an unauthorized
digital replica specifically
identified in a notification
sent under paragraph (3); and
(BB) are uploaded after
valid, applicable notice was
submitted to, and processed by,
the provider;
(cc) for the provider of an online
service described in subsection
(a)(5)(A)(ii), with respect to sound
recordings that are predominantly the
fixation of sounds of a performance of
a musical composition and are user
uploaded material, as soon as is
technologically and practically
feasible for that provider, removes or
disables access to all other publicly
available instances of the work
embodying the claimed unauthorized
digital replica that--
(AA) match the digital
fingerprint of an unauthorized
digital replica specifically
identified in a notification
sent under paragraph (3); and
(BB) are uploaded after
valid, applicable notice was
submitted to, and processed by,
the provider; and
(dd) takes reasonable steps to
promptly notify the right holder, and
the party that placed the material on
the online service, that the online
service removed or disabled access to
the material; and
(II) the provider, in the case that the
provider receives a counter-notification that
satisfies the requirements under paragraph (4)
and opts to replace the removed material or
cease disabling access to that material--
(aa) takes reasonable steps to
promptly provide the individual or
entity that provided the applicable
notification under paragraph (3) with a
copy of the counter-notification; and
(bb) not less than 14 days after
the date on which the provider receives
that counter-notification, replaces the
removed material or ceases disabling
access to that material, unless an
eligible plaintiff described in
subsection (e) brings an action under
that subsection, in which case the
provider shall remove the material or
disable access to the material as soon
as is technologically and practically
feasible for the provider.
(2) Designated agent.--
(A) Designation.--
(i) In general.--A provider of an online
service described in clause (i) or (ii) of
subsection (a)(5)(A) shall, and a provider of
an online service that is described in
subsection (a)(5)(A)(iii) and is eligible for
registration may, register a designated agent
in accordance with this paragraph.
(ii) Contents.--To designate an agent under
clause (i), the provider of an online service
shall make available through that online
service, in a location accessible to the
public, and provide to the Copyright Office,
substantially the following information:
(I) The name, address, telephone
number, and electronic mail address of
the agent.
(II) Other contact information that
the Register of Copyrights may
determine appropriate.
(B) Directory.--The Register of Copyrights--
(i) shall--
(I) maintain a current directory of
designated agents for the purposes of
this paragraph; and
(II) make the directory described
in subclause (I) available to the
public for inspection, including
through the internet; and
(ii) may require payment of a fee by the
provider of an online service to cover the
costs of maintaining the directory described in
clause (i)(I).
(C) Effect of failure to designate.--There shall be
established a presumption that a provider of an online
service described in subparagraph (A)(i) has not
undertaken a good faith effort to comply with this
subsection if the provider has failed to register a
designated agent under this paragraph by the later of--
(i) the date that is 90 days after the
effective date of this section; or
(ii) the date that is 90 days after the
date on which the provider becomes a provider
described in subparagraph (A)(i).
(3) Elements of notification.--To be effective under this
subsection, a notification of a claimed violation of the right
described in subsection (b) shall be a written communication
provided to the designated agent registered under this
subsection with respect to the applicable provider of an online
service that includes the following:
(A) A physical or electronic signature of the right
holder, an individual or entity authorized to act on
behalf of the right holder, or an eligible plaintiff
under subsection (e)(1).
(B) Identification of the individual, the voice or
visual likeness of whom is at issue with respect to an
unauthorized digital replica or a product or service
described in subsection (c)(2)(B).
(C) Identification of the material containing an
unauthorized digital replica or a product or service
described in subsection (c)(2)(B), including
information sufficient to allow the provider to locate
the identified material.
(D) Information reasonably sufficient to permit the
provider to contact the notifying party, such as an
address, telephone number, and email address.
(E) A statement that the notifying party believes
in good faith that--
(i) the material is an unauthorized use of
a digital replica or a product or service
described in subsection (c)(2)(B); and
(ii) the exclusions under subsection (c)(5)
do not apply.
(F) If not the right holder or an eligible
plaintiff under subsection (e)(1), a statement, under
penalty of perjury, that the notifying party has the
authority to act on behalf of the right holder.
(G) For the purposes of paragraph (1)(B),
information reasonably sufficient to--
(i) identify the reference or link to the
material or activity claimed to be or
containing an unauthorized digital replica, or
a product or service described in subsection
(c)(2)(B), that is to be removed or to which
access is to be disabled; and
(ii) permit the provider to locate the
reference or link described in clause (i).
(4) Elements of counter-notification.--To be effective
under this subsection, a counter-notification with respect to a
notification provided under paragraph (3) shall be a written
communication that satisfies the following:
(A) The counter-notification is provided--
(i) to the designated agent of the online
service provider to which that notification was
submitted under paragraph (3); and
(ii) by the party that placed the
applicable material on the online service.
(B) The counter notification includes the
following:
(i) A physical signature, witnessed or
attested to in person by a licensed notary
public, of the individual or entity that placed
the applicable material on the online service.
(ii) An identification of the material that
has been removed or to which access has been
disabled and the location at which the material
appeared before the material was removed or
access to the material was disabled.
(iii) Information that is reasonably
sufficient to permit the provider of the online
service and the individual or entity that
provided the notification under paragraph (3)
to contact the party providing the counter-
notification, including an address, telephone
number, and email address.
(iv) A statement made under penalty of
perjury that the party providing the counter-
notification has a good faith belief that the
applicable material was removed, or access to
that material was disabled, as a result of
mistake or misidentification of the material to
be removed or access to which was to be
disabled, which shall include a specific
assertion by the party providing the counter-
notification that such material--
(I) is not a digital replica;
(II) is an authorized digital
replica; or
(III) is an unauthorized digital
replica that satisfies an exclusion
under paragraph (4) or (5) of
subsection (c), or any other
requirements with respect to a valid
legal defense, which shall include a
succinct explanation of how such
material satisfies the applicable
exclusion or requirement.
(v) A statement that the individual or
entity described in clause (i)--
(I) consents to the jurisdiction of
the district court of the United States
for the judicial district in which the
address provided under clause (iii) is
located (or, if that address is outside
of the United States, for any judicial
district of the United States in which
the provider may be found); and
(II) will accept service of process
from--
(aa) the individual or
entity that provided
notification under paragraph
(3); or
(bb) an agent of the
individual or entity described
in item (aa).
(5) Penalties for false or deceptive notice.--
(A) Knowing material representations.--
(i) In general.--It shall be unlawful to
knowingly materially misrepresent--
(I) in a notification provided
under paragraph (3)--
(aa) that the material
requested to be removed, or
access to which is requested to
be disabled, is an unauthorized
digital replica;
(bb) that the exclusions
under subsection (c)(5) do not
apply; or
(cc) that an individual or
entity has the authority to act
on behalf of the right holder;
or
(II) in a counter-notification
provided under paragraph (4)--
(aa) that the material
removed, or to which access was
disabled--
(AA) was removed or
disabled by mistake or
misidentification;
(BB) is not a
digital replica; or
(CC) is subject to
an exclusion under
subsection (c)(5) or
any other valid legal
defense.
(ii) Failure to perform good faith
review.--The failure to consider in good faith
any of the issues described in clause (i)(I)
before providing a notification under paragraph
(3), or any of the issues described in clause
(i)(II) before providing a counter-notification
under paragraph (4), shall constitute a knowing
material misrepresentation under this
subparagraph.
(B) Penalties.--In addition to a cause of action
and remedies made available under subsection (e), any
individual or entity that violates subparagraph (A) of
this paragraph shall be liable to the applicable right
holder, the alleged violator that uploaded the
applicable material, or the provider of an online
service injured by the misrepresentation, for an amount
equal to the greater of--
(i) $25,000 per notification provided under
paragraph (3), or counter-notification provided
under paragraph (4), that contains a
misrepresentation described in subparagraph (A)
of this paragraph; or
(ii)(I) any actual damages incurred by the
applicable right holder or alleged violator, as
well as by any provider of an online service or
other individual or entity injured by the
misrepresentation; and
(II) any costs and attorney's fees incurred
by the applicable recipient of a notification
under paragraph (3), or a counter-notification
under paragraph (4), that prevails in an action
alleging that the notification or counter-
notification, as applicable, was false or
deceptive.
(e) Civil Action.--
(1) Eligible plaintiffs.--A civil action against an
individual or entity that, in a manner affecting interstate
commerce (or using any means or facility of interstate
commerce), commits a violation of subsection (c) may be brought
by--
(A) the applicable right holder;
(B) if the applicable right holder is an individual
who is younger than 18 years of age, a parent or
guardian of that individual; or
(C) in the case of a digital replica involving a
sound recording artist, any individual or entity that
has, directly or indirectly, entered into--
(i) a contract for the exclusive personal
services of the sound recording artist as a
sound recording artist; or
(ii) an exclusive license to distribute or
transmit 1 or more works that capture the audio
performance of the sound recording artist.
(2) Limitations period.--A civil action may not be brought
under this subsection unless the civil action is commenced not
later than 3 years after the date on which the party seeking to
bring the civil action discovered, or with due diligence should
have discovered, the applicable violation.
(3) 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, or the applicable
product or service described in subsection (c)(2)(B), was
unauthorized or disclosed that the digital replica, product, or
service was generated through the use of artificial
intelligence or other technology.
(4) Remedies.--
(A) In general.--In any civil action brought under
this subsection--
(i) an individual or entity found to have
committed a violation of subsection (c) shall
be liable to the injured party in an amount
equal to the greater of--
(I)(aa) in the case of an
individual, $5,000 per work embodying
the applicable unauthorized digital
replica;
(bb) in the case of a provider of
an online service that has undertaken a
good faith effort to implement all
applicable obligations of paragraphs
(1) through (4) of subsection (d),
$25,000 per work embodying the
applicable unauthorized digital
replica;
(cc) in the case of a provider of
an online service that has not
undertaken a good faith effort to
implement all applicable obligations of
paragraphs (1) through (4) of
subsection (d), $5,000 per display,
copy made, transmission, and instance
of the unauthorized digital replica
being made available on the online
service in a sum of not more than
$750,000 per work embodying the
applicable unauthorized digital
replica; and
(dd) in the case of an entity that
is not a provider of an online service,
$25,000 per work embodying the
applicable unauthorized digital
replica; or
(II) any actual damages suffered by
the injured party as a result of the
activity, plus any profits from the
unauthorized use that are attributable
to such use and are not taken into
account in computing the actual
damages;
(ii) an individual or entity found to have
violated subsection (c) by virtue of engaging
in an activity described in subsection
(c)(2)(B) shall be liable to the injured party
in an amount equal to the greater of--
(I)(aa) in the case of an
individual, $5,000 per product or
service;
(bb) in the case of a provider of
an online service that has undertaken a
good faith effort to implement all
applicable obligations of paragraphs
(1) through (4) of subsection (d),
$25,000 per product or service;
(cc) in the case of a provider of
an online service that has not
undertaken a good faith effort to
implement all applicable obligations of
paragraphs (1) through (4) of
subsection (d), $750,000 per product or
service; or
(dd) in the case of an entity that
is not a provider of an online service,
$25,000 per product or service; or
(II) any actual damages suffered by
the injured party as a result of the
activity, plus any profits from the
unauthorized use that are attributable
to such use and are not taken into
account in computing the actual
damages;
(iii) the plaintiff may seek injunctive or
other equitable relief;
(iv) in the case of willful activity in
which the injured party has proven that the
defendant acted with malice, fraud, knowledge,
or willful avoidance of knowledge that the
conduct violated the law, the court may award
to the injured party punitive damages; and
(v) if the prevailing party is--
(I) the party bringing the action,
the court shall award reasonable
attorney's fees; or
(II) the party defending the
action, the court shall award
reasonable attorney's fees if the court
determines that the action was not
brought in good faith.
(B) Objectively reasonable belief.--A provider of
an online service that has designated an agent under
subsection (d)(2) and has an objectively reasonable
belief that material that is claimed to be an
unauthorized digital replica does not qualify as a
digital replica shall be liable only for actual damages
under subparagraph (A) if the material is ultimately
determined to be an unauthorized digital replica.
(f) Subpoena To Identify Violator.--
(1) Request.--A right holder, an individual or entity
authorized to act on behalf of a right holder, or an eligible
plaintiff under subsection (e)(1) may request the clerk of any
district court of the United States to issue a subpoena to a
provider of an online service for identification of an alleged
violator of this section in accordance with this subsection.
(2) Contents of request.--A request under paragraph (1) may
be made by filing with the clerk--
(A) a copy of a notification described in
subsection (d)(3);
(B) a proposed subpoena; and
(C) a sworn declaration to the effect that--
(i) the purpose of the subpoena is to
obtain the identity of an individual or entity
alleged to be liable under subsection (c); and
(ii) the information described in clause
(i) will only be used for the purpose of
protecting rights under this section.
(3) Contents of subpoena.--A subpoena issued under this
subsection shall authorize and order the provider of the
applicable online service to expeditiously disclose to the
party that sought the subpoena information sufficient to
identify the alleged violator by virtue of the activity
described in the notification to the extent that information is
available to the provider of the online service.
(4) Basis for granting subpoena.--If a proposed subpoena
under this subsection is in proper form, the applicable
notification filed satisfies the requirements under subsection
(d)(3), and the accompanying declaration is properly executed,
the clerk shall expeditiously issue and sign the proposed
subpoena and return the subpoena to the requester for delivery
to the provider of the applicable online service.
(g) Preemption.--
(1) 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 replica, as defined in this Act,
in an expressive work.
(2) Rule of construction.--Notwithstanding paragraph (1),
nothing in this Act may be construed to preempt--
(A) causes of action under State statutes or common
law in existence, as of January 2, 2025, regarding a
digital replica;
(B) causes of action under State statutes
specifically regulating a digital replica depicting
sexually explicit conduct, as defined in section
2256(2)(A) of title 18, United States Code, or an
election-related digital replica; or
(C) causes of action under State statutes or common
law in existence, as of January 2, 2025, for the
distributing, importing, transmitting, or otherwise
making available to the public a product or service
capable of producing 1 or more digital replicas.
(h) Rules of Construction.--
(1) Laws pertaining to intellectual property.--This section
shall be considered to be a law pertaining to intellectual
property for the purposes of section 230(e)(2) of the
Communications Act of 1934 (47 U.S.C. 230(e)(2)).
(2) No duty to monitor.--Except as expressly provided in
subsection (d)(1)(B)(ii), nothing in this section may be
construed to require the provider of an online service to--
(A) monitor the online service for, or
affirmatively seek facts about, any digital replica; or
(B) gain access to material.
(i) Severability.--If any provision of this section, or the
application of a provision of this section, is held to be invalid, the
validity of the remainder of this section, and the application of that
provision to other individuals, entities, and circumstances, shall not
be affected by that holding.
(j) Retroactive Effect.--
(1) Liabilities.--Liability under this section shall apply
only to--
(A) conduct occurring after the date of enactment
of this Act; and
(B) in the case of conduct covered by a license or
contract, a license or contract that is executed after
the date of enactment of this Act.
(2) Digital replication right.--The right granted under
subsection (b)--
(A) shall apply to any individual, regardless of
whether the individual dies before, on, or after the
date of enactment of this Act; and
(B) in the case of a right holder who has died
before the date of enactment of this Act, shall vest in
the executors, heirs, assignees, or devisees of the
right holder.
(k) Effective Date.--This Act shall take effect on the date that is
180 days after the date of enactment of this Act.
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