The Copyright Office has published a report on copyright and artifical intelligen (AI) which can be found at chrome-https://www.copyright.gov/ai/Copyright-and-Artificial-Intelligence-Part-1-Digital-Replicas-Report.pdf.

The Report uses the term “digital replica” to refer to a video, image, or audio recording that has been digitally created or manipulated to realistically but fasely depict and individual. 

The Report notes many deficiencies with respect to existing laws as they apply to digital replicas. For example, digital replicas that are produced by ingesting copies of preexisting copyright works, or by altering them, such as superimposing someone’s face onto an audiovisual work or simulating their voice singing they lyrics of a musical work, may implicate copryight exclusive rights, including the rights to reproduce a work and to prepare derivative works. Copyright does not, however, protect an individual’s identiy in itself, even when incorproated into a work of authorship. 

Under the Lanham Act, claims such as false endorsement involving a digital replica are limited to unauthorized commercial uses, and most federal courts also require a showing of consumer awareness of the depicted individual in order to establish a likelihood of confusion, limiting the Lanham Act’s protection to well-known figures and commercial circumstances. It may be difficult for many individuals, including less famous artists and performers, to prove that the challnged conduct is likely to confuse consumers regarding the plaintiff’s association with, or approval of, the defendant’s commerical activiteis. And issues like AI-gnerated “revenge porn” would likely fall beyond its reach. 

The report reccomends a new federal law which covers all individuals, at least for the individual’s lifetime that targets digital replicas, whether generated by AI or otherwise, taht are so realistic taht they are difficult to distinguish from authentic depictions. Liability should arise from teh distribution or making available of an unauthorized digital replica, but not the act of creation alone. It should nott be limtied to commercial uses,a s the harms caused are often personal in nature. It should require actual knowledge both tthat hte representation was a digital replica of a particular indivdual and that it was unauthorized. The statute should include a safe harbor mechanism that incentivizes online servie providers to remove unauthorized digital replicas after receiving effective notice or otherwise obtaining knowledge that they are unauthorized. Individaul should be albe to licesne and monetize their digital replica rights, subject to gaurdrails, but not to assign them outright. Effective remedies should be provided, both injunctive releif and monetary damages as well as statutory damages and/or prevailing party attorney’s fees.