In the article “US Copyright Office Issues Urgent Call for Federal Anti-Deepfake Legislation and New Digital Replica Right,” partner Jonathan Hyman, co-chair of the firm’s advertising, media and entertainment practice group, offered his perspective on recommendations outlined in the Copyright Office’s latest report.
The Office’s report, intended to advise Congress in policymaking, focuses in part on the proposal of a digital replica right to protect individuals against harmful “deepfake” replicas. Hyman expressed how he believes such protection should apply post-mortem, saying, “Celebrities and individuals (and their estates) could see harms for misuse increase upon their death. Creatives and artists alike have long struggled with the sad truth that they could be more popular in death than alive. Cutting this right off at death does not seem to address this issue.”
The report also addressed what actions constituted infringement, recommending that liability depend on party’s knowledge that they were distributing an unauthorized digital replica. “I worry that the actual knowledge standard for liability is too high and think a ‘should have known standard’ is not too low,” Hyman commented, suggesting that the threshold for infringement could be lower.
In speaking on the broader topic of addressing digital IP issues with robust legislation, Hyman said, “Codifying right of publicity state laws, case law, and other IP rights into a federal right was needed prior to AI becoming ubiquitous through its massive leaps in technology and ease of use. Now the need is much, much greater.”
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