The rapid growth of generative AI has been one of the biggest stories of the past few years. Once a plaything of the technorati, generative AI is now used by everyone from C-suite executives to bored teenagers, and its rapid expansion has created a host of legal and ethical considerations. In 2023, the US Copyright Office launched an initiative to study the intersection of copyright law and AI. Drawing on feedback from a wide array of stakeholders such as AI developers, lawyers, creatives, and academics, the USCO is in the process of publishing a three-part report on the subject. Each part focuses on a different subtopic. This post will discuss the first part which is concerned with digital replicas, while the second will focus on the copyrightability of material generated by AI and the third will look at the legal implications of using copyrighted material to train AI.

What is copyright?

American copyright law is founded on Article I, clause 8, section 8 of the United States’ Constitution, which states that Congress can: “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

In a nutshell, copyright is a legal concept that gives creators the sole right to use and distribute their original works for a limited period of time. It’s meant to incentivize creativity by ensuring that creators can benefit financially from their works. Without these protections, many creators might not be able to justify the time, energy, and money spent on creating (after all, most of us don’t want to be starving artists!). 

What are digital replicas?

Generative AI can be used to create highly detailed digital simulacra of things that actually exist outside of cyberspace. For example, the song “Heart On My Sleeve” sounds like it’s being sung by Drake and The Weeknd even though their voices are entirely AI-generated. While this is a fairly benign example of a digital replica, they can be used for far more malign purposes. 

AI enters the chat

The ready availability of generative AI allows almost anyone to make use of copyrighted works in new ways. These replicas can be benign such as when country music star Randy Travis used AI to create new music following a stroke. But they can also have a darker side such as the use of a person’s likeness to create deepfake pornographic images. 

The USCO’s report noted that current laws struggle to deal with digital replicas. If they’ve been made using a copyrighted work, they might give rise to a claim of copyright infringement. However, replicating someone’s image or voice alone wouldn’t be enough to constitute infringement. Some US states have laws which protect a person’s rights of publicity and/or privacy, but these provisions aren’t uniform. And in some cases, these protections only apply when a person’s identity has some commercial value (e.g., celebrities). Moreover, they may only offer remedies in cases of commercial exploitation. 

The USCO’s recommendations

Since existing law is ill-suited to address these issues, the USCO suggested that a new federal law regarding digital replicas should be passed and they made a number of specific recommendations regarding the shape of this legislation. 

1. Subject matter: They suggested that any new legislation should focus on digital replicas that “convincingly appear to be the actual individual being replicated.” 
2. Persons protected: Instead of focusing on celebrities and other public figures, the USCO recommended that a digital replica right should apply to everyone since the rich and famous aren’t the only ones who can be injured by a malicious replica.
3. Length of protection: These protections should focus on the living and need not apply to the deceased, though they suggested that there might be some protection for commercially significant personas.
4. Infringing acts: The USCO recognized that the mere act of creating a digital replica isn’t necessarily harmful, so they suggested that a future law should penalize public distribution. 
5. Licensing: The USCO recommended that people should be able to license their images and/or voices for use in digital replicas while retaining some rights. “Licensing can facilitate the creation, distribution, and use of creative works, products, and services. It enables individuals who choose to do so to monetize and profit from their own personas.” However, they also called for some safeguards to prevent exploitation.
6. First amendment concerns: There is an inherent tension between a person’s right to control their image and the rights of others to engage in free speech as protected by the First Amendment. The USCO therefore called for a balancing framework that would allow the courts to weigh the relevant factors on a case-by-case basis. 
7. Remedies: To ensure the new law has teeth, the USCO suggested that it should allow for both monetary and injunctive relief. In other words, the courts could assess damages in addition to ordering the offending work to be taken down. Since ordinary members of the public might not be able to show that they were financially disadvantaged by an illicit digital replica, the law could allow for damages up to a prescribed amount to be imposed in these circumstances. 
8. Interaction with state laws: Many states already have similar laws on the books, and the USCO recommended that any federal rights regarding digital replicas should not preempt state laws, as preemption could end up undermining individuals’ rights. “For example, in a state that provides for postmortem rights of publicity, a preemptive federal law without postmortem rights would result in a deceased individual’s beneficiaries having longer-lasting rights in the non-digital context.”

While the USCO recognized that many creators are concerned about AI being able to replicate their artistic styles, they did not recommend that the law should treat this as protected subject matter under any new legislation. Instead, they favored using the provisions of existing legislation. For example, the USCO suggested that the Lanham Act’s prohibitions against unfair competition and deceptive trade practices could apply.

Looking ahead

It’s important to note that the recommendations in the USCO’s report are just that–recommendations. A federal law about digital replicas would require an Act of Congress, and it’s unclear if such legislation could realistically pass the Senate and the House any time soon. With President Trump trying to reduce the size of the federal government, Congress might be content to leave these issues up to the states.  

The rapid growth of generative AI has brought significant legal and ethical considerations, shifting from a niche interest to a widely used technology. The US Copyright Office launched an initiative to explore the intersection of copyright law and AI, and they are in the process of publishing the results of their study. The first installment of their three-part report focuses on digital replicas. After highlighting the inadequacies of current laws, it recommended new legislation to protect individuals from unauthorized digital replicas. At the same time, the USCO recognized that any new law must be carefully balanced and avoid undermining existing rights under state law.  

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