A NO FAKES Act for Every Face in the Crowd?
Congress on the cusp of inventing a new form of intellectual property
The Senate Judiciary Committee recently approved the NO FAKES Act unanimously, sending it to the full Senate for consideration. While no floor vote has yet been scheduled, the bill’s passage through committee, by unopposed voice vote, takes us one big stop closer to creating a new species of intellectual property in the U.S.
The Nurture Originals, Foster Art, and Keep Entertainment Safe of 2026, a revised version of NO FAKES Act of 2025, grants individuals an intellectual property right in their voice and visual likeness, and would prohibit the distribution of unauthorized AI-generated deepfakes or offering a product or service primarily designed to create them. According to the bill’s text, “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“.
The right is not assignable to a third party during the life of the individual, but is licensable, “in whole or in part, exclusively or non-exclusively, by the right holder.” Nor does it expire with the death of the individual but extends for 10 years after death, renewable in five-year chunks if the voice or likeness is being used in interstate or foreign commerce, up to a maximum of 70 years post-mortem.
“This bill is about protecting what’s most personal to us, what makes us us: our voice and our likeness,” Sen. Chris Coons (D-DE), one of the bill’s sponsors, said. “Every American should have the right to decide how their voice and likeness will be used, especially when generative AI can create highly realistic digital replicas that make it look like we said things we never said and did things we never did.”
The bill now includes exemptions for parody, news and documentaries, in addition to libraries and archives, in a bid to quell the concerns that dogged previous versions of the legislation over its potential to trample on the First Amendment’s guarantee of free speech. Although, those concerns still loomed over the committee vote.
“The legislation as drafted now raises some potentially significant concerns regarding free speech,” Sen. Mike Lee (R-UT) said before voting to advance the measure. “We do need to ensure that in protecting content creators’ rights, we don’t inadvertently chill free speech or undermine long-standing First Amendment principles.”
The panel also adopted an amendment to limit liability in cases where a deepfake bore a coincidental resemblance to a non-famous person.
Not surprisingly, the committee’s action was cheered by the creative industries.
“The Human Artistry Campaign applauds the Senate Judiciary Committee for advancing the NO FAKES Act.,” the coalition said in a statement emailed to reporters. “Creativity is rooted in human experience – perspectives, faces and stories that connect us and move culture forward. As AI evolves, everyone deserves the right to control how their voice, likeness and identity are used. The NO FAKES Act provides those protections without inhibiting innovation, and Congress must act now for the benefit of each American.”
Added the Recording Industry Association of America, “As more policymakers join, a broadening coalition of creators, advocacy groups and technology stakeholders is driving nationwide protection for every American to maintain control over their own voice and likeness from exploitive unauthorized AI-generated voice and image clones while also encouraging innovation and protecting free speech, creating clear momentum for Congressional passage this year.”
I wasn’t able to find a formal statement from the IP bar but I imagine they’re pretty pumped as well. If it becomes law, the NO FAKES Act will usher in a whole new flavor of intellectual property—a virgin field of law waiting to go under the plow of dealmaking and litigation.
Clearly, AI-enabled deepfakes are a scourge on modern life, not just for celebrities, politicians and other high-profile victims, but for ordinary folks who have fallen victim to deepfake scams: the grandparent deceived into thinking they’re speaking by phone with a relative in trouble; the victims, often underage, of deepfake porn; the middle manager duped by their “CFO” on a video call into transferring money to a fake account. Policymakers and regulators have a clear obligation to take meaningful action to try to limit the damage—to say nothing of the companies that unleash the tools for creating deepfakes.
But it’s no trivial matter to conjure an entirely new form of intellectual property out of something as commonplace—and for the most part as unauthored—as faces and voices.
Historically, and in the U.S. constitutionally, intellectual property rights have been reserved for the fruits of human creativity, whether inventorship or artistry, or for the distinctive indicia of a brand. But there is nothing particularly creative about having a face or a voice. Most of us have them. The enumerated intellectual property power in the Constitution is also quite explicit as to its purpose: to promote the progress and useful arts. It would be difficult to argue that a person’s likeness or voice are are the products of science or art.
There are, of course, creative uses to which a human face or voice can be put. But that’s not what the NO FAKES Act is about. The products of creative uses of a voice or likeness, if fixed in a tangible medium of expression, are already protected by copyright, or if performed live, by Ticketmaster (sorry about that).
Activity that trades on the notability of a likeness or voice without authorization should certainly be proscribed. But that can be done without creating a new property right, with all that entails. We sanction a lot of unauthorized uses of things without bestowing new property rights. It’s illegal to make unauthorized use of financial services to launder money, or evade trade restrictions, but not because it infringes anyone’s property rights. There are other plausible legal authorities on which a prohibition on deepfakes of prominent persons could be based—the interstate commerce clause, perhaps, or anti-fraud statutes, identity theft laws or computer crime statutes. It might even make sense to establish a national right-of-publicity law that would not necessarily require the administrative infrastructure of property laws. But the NO FAKES Act doesn’t do that.
Administratively, in fact, the NO FAKES Act is a bit of an oddball. Conceptually, the new IP right envisioned by the bill is most similar to trademarks. It imagines the likeness of a person, or the sound of their voice, as distinctive indicia of that person’s being. But the law would assign administrative responsibility to the Register of Copyrights, not the Patent & Trademark Office. And it charges the Register with developing and supervising procedures for registering to extend the post-mortem term of the right.
The law also envisions a DMCA-like notice-and-takedown regimen and a provision for counter notices, ironically a system many copyright owners find frustrating and ineffective.
But the real potential for confusion lies in the would-be law’s application in cases involving individual’s who have not otherwise made commercial or notable use of their likeness or voice. Certainly, the malicious use of another person’s identity ought to be a crime. So, too, should providing tools predominantly designed to make such use. But investing an intellectual property right in something of no commercial value, even to the possessor, as the foundation for prohibiting such activity seems like a long way around and could even be counterproductive.
You don’t need specially designed tools to create deepfakes. Midjourney or Gemini will do just fine. And, insofar as the new right has at least one foot in the Copyright Office, it could lead courts to apply the substantial non-infringing uses standard in copyright law to decline to impose liability on general-purpose AI tools.
It’s perfectly understandable that those in the creative industries who make their living from their likeness or their voice would desire legal tools to wield against their misuse. It might even be justifiable as a form of intellectual property in those cases. Their appearance and the sound of their voices might plausibly be construed as intangible assets that have value due to the creative efforts of those individuals.
The problem, of course, is where do you draw the line? How creative or notable would a voice or likeness need to be to earn protection? The NO FAKES Act attempts to route around the problem of line drawing by extending the right to everyone—the notable and anonymous alike. But is it still intellectual property if its application is so indiscriminate.
It’s perfectly understandable that Congress should seek to protect the rest of us anonymous, no-talent schlubs from fraud and abuse. But investing every face in the crowd with a new property right steers a route into unchartered waters.
This is the part where it’s incumbent on me to suggest a workable alternative. And I freely admit I do not (yet) have one. But with more debate likely to come before the NO FAKES Act reaches its final form I hope someone smarter than me can figure out how to tailor its solution to the nature of the problem without creating new problems in its wake.