As SAG-AFTRA and other artists’ groups sound the alarm over the proliferation of AI deepfakes, studios are warning that too sweeping a proposed solution would violate the First Amendment.
The alternate views of a draft bill, called the No Fakes Act, were apparent in a Senate hearing on Tuesday, underscoring the thorny task at hand for lawmakers as they try to establish guardrails around AI technology.
The Motion Picture Association’s senior VP Ben Sheffner cautioned that “legislating in this area involves doing something that the First Amendment sharply limits: Regulating the content of speech.”
“It will take very careful drafting to accomplish the bill’s goals without inadvertently chilling or even prohibiting legitimate, Constitutionally protected uses of technology to enhance storytelling,” he said.
The draft Senate bill would give individuals a “digital replication right” to authorize the use of their image, voice or visual likeness. The right also would extend to the heirs, executors or assignees of a deceased person for a period of 70 years. There are exclusions for news and sports broadcasts, documentaries, historical and biographical works, and for the purposes of comment, criticism, satire and parody. Also excluded are incidental uses.
In his testimony, though, Sheffner expressed concerns that the law was still too broad and would have a chilling effect on filmmakers.
He pointed to the movie Forrest Gump, which used that era’s digital technology to feature the lead character interacting with John F. Kennedy, Lyndon Johnson and Richard Nixon.
“To be clear: Those depictions did not require the consent of their heirs,” Sheffner said. “And requiring such consent would effectively grant heirs or their corporate successors the ability to censor portrayals they don’t like, which would violate the First Amendment.”
Sheffner said that the MPA recognizes the concern of actors and artists losing their livelihood to an unauthorized replica, but “we have to look at the entire thing through the lens of the First Amendment.”
He said that existing laws, on everything from defamation to state right of publicity law, can address many of the potential problems. The MPA also suggested a narrower restriction that limits the use of a digital replica to replace a performer, leaving it legal to depict individuals “in expressive works such as biopics and parodies.”
The studios also want the law to apply only to “highly realistic representations” of an individual, not cartoon versions like those who appear on The Simpsons. They also suggest exemptions where a replica is used as part of a “work of political, public interest, educational, or newsworthy value,” except for these and other depictions that are deceptive.
Studios also want to limit the digital replication right to living individuals. Sheffner argued that applying ia digital replication right to deceased individuals would be less likely to survive a First Amendment challenge. That is because the courts, in weighing whether the law is constitutional, would consider the interest of performers protecting their livelihoods. That rationale that does not exist for those who are dead.
“I have yet to hear a compelling government interest in protecting digital replicas once somebody is deceased,” Sheffner said. In his written testimony, he noted that extending digital replica rights to the deceased and “giving heirs or corporate successors the ability to sue over them, would represent a radical change in centuries of American law, under which ‘there can be no defamation of the dead.’”
How the proposed bill addresses post mortem rights is one area of sharp disagreement between studios and artists’ groups.
Also testifying at the hearing was SAG-AFTRA National Executive Director and Chief Negotiator Duncan Crabtree-Ireland, who said, “It’s shocking that anyone would think that this right doesn’t deserve to be preserved and protected after death…It’s an economic right. It’s a personal right. And it’s something that has real value. And why that should somehow dissipate upon death and make itself available to big corporate interests, like the ones represented by some folks here, that doesn’t make any sense.” He also said that the right shouldn’t be limited to 70 years, but exist in perpetuity.
“This is about a person’s legacy,” he said. “This is about a person’s right to give this to their family, and let their family take advantage of the economic benefits they worked their whole life to achieve.”
In his opening statement, Crabtree-Ireland cited First Amendment concerns, telling lawmakers, “The Supreme Court made clear over a half-century ago that the First Amendment does not require that the speech of the press or any other media, for that matter, be privileged over protections of the individual being depicted. To the contrary, courts apply balancing tests to determine which rights will prevail.”
The chairman of the Senate Judiciary IP subcommittee, Sen. Chris Coons (D-DE) and Sen. Thom Tillis (R-NC) each made clear that the legislation is a work in progress. Like other AI proposals, it’s unclear when, or if, it will advance.
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