HR2794-119

2. Voice and visual likeness rights In this section: The term digital fingerprint means an electronic label or identifier created by a cryptographic hash function (or similar function), or any other digital process, tool, or technique selected by the provider of an online service, that is unique to a specific piece of material such that it is effectively certain that such piece of material will not be misidentified as a match for a different piece of material. The term digital replica— means a newly created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that— is embodied in a sound recording, image, audiovisual work, including an audiovisual work that does not have any accompanying sounds, or transmission— in which the actual individual did not actually perform or appear; or that is a version of a sound recording, image, or audiovisual work in which the actual individual did perform or appear, in which the fundamental character of the performance or appearance has been materially altered; and does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder. The term individual means a human being, living or dead. The term interactive computer service means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically— a service or system that provides access to the internet; and such systems operated, or services offered, by libraries or educational institutions. The term online service— means— any website, online application, mobile application, or virtual reality environment that predominantly provides public access to user uploaded material; any digital music provider to which section 115 of title 17, United States Code, applies that provides public access to user uploaded material if that digital music provider is not covered under clause (i); and any online application, mobile application, virtual reality environment, application store, search engine (including any feature that provides web search results), advertising service or network, online shopping service or platform, electronic commerce provider, mapping service, cloud storage service, or website hosting service or any other interactive computer service that is not covered under clause (i) and that provides public access to user uploaded material, but only if the provider of that interactive computer service has registered a designated agent with the Copyright Office under subsection (d)(2); and does not include any website, online application, mobile application, virtual reality environment, application store, search engine, or cloud storage service that predominantly provides public access to user uploaded products or services, the primary function of which is to distribute, import, transmit, or otherwise make available to the public a product or service described in subsection (c)(2)(B). The term right holder means— the individual, the voice or visual likeness of whom is at issue with respect to a digital replica or a product or service described in subsection (c)(2)(B); and any other individual or entity that has acquired, through a license, inheritance, or otherwise, the right to authorize the use of the voice or visual likeness described in subparagraph (A). The term sound recording artist means an individual who creates or performs in sound recordings for economic gain or for the livelihood of the individual. The term user uploaded material means material, such as a video, image, game, audio file, or other material, that is placed on a service directly by or at the direction of an end user of a service. For the purposes of subparagraph (A), an end user, with respect to an online service, does not include— a third-party commercial provider of sound recordings to a digital music provider; or an employee or agent of the online service acting on behalf of the provider of the online service. Subject to the other provisions of this section, each individual or right holder shall have the right to authorize the use of the voice or visual likeness of the individual— in a digital replica; or in connection with a product or service for which authorization of the individual or right holder is required to avoid liability with respect to an activity described in subsection (c)(2)(B). The right described in paragraph (1) shall have the following characteristics: The right is— a property right; not assignable during the life of the individual; and licensable, in whole or in part, exclusively or non-exclusively, by the right holder. The right shall not expire upon the death of the individual, without regard to whether the right is commercially exploited by the individual during the lifetime of the individual. Upon the death of the individual— the right is transferable and licensable, in whole or in part, by the executors, heirs, assigns, licensees, or devisees of the individual; and ownership of the right may be— transferred, in whole or in part, by any means of conveyance or by operation of law; and bequeathed by will or pass as personal property by the applicable laws of intestate succession. The right shall be exclusive to— the individual, subject to the licensing of the right during the lifetime of that individual under subparagraph (B); and the right holder— for a period of 10 years after the death of the individual; and if the right holder demonstrates active and authorized public use of the voice or visual likeness of the individual during the 2-year period preceding the expiration of the 10-year period described in item (aa), for an additional 5-year period, subject to renewal for additional 5-year periods, provided the right holder can demonstrate authorized public use of the voice or visual likeness of the individual during the 2-year period preceding the expiration of each additional 5-year period. The right shall terminate on the date that is the earlier of— the date on which the 10-year period or 5-year period described in clause (iv)(II) terminates without renewal; or the date that is 70 years after the death of the individual. A license described in subparagraph (A)(i)(III)— while the individual is living, is valid only to the extent that the license duration does not exceed 10 years; and shall be valid only if the license agreement— is in writing and signed by the individual or an authorized representative of the individual; and includes a reasonably specific description of the intended uses of the applicable digital replica. A license described in subparagraph (A)(i)(III) involving a living individual who is younger than 18 years of age— is valid only to the extent that the license duration does not exceed 5 years, but in any case terminates when the individual reaches 18 years of age; and shall be valid only if the license agreement— is in writing and signed by the individual or an authorized representative of the individual; includes a reasonably specific description of the intended uses of the digital replica; and is approved by a court in accordance with applicable State law. The provisions of clauses (i) and (ii) shall not apply with respect to a license if the license is governed by a collective bargaining agreement that addresses digital replicas. The provisions of clauses (i) and (ii) shall not affect terms and conditions of a license or related contract other than those described in this subparagraph, and the expiration of that license shall not affect the remainder of the license or related contract. A post-mortem transfer or license described in subparagraph (A)(iii)(I) shall be valid only if the transfer agreement or license agreement is in writing and signed by the right holder or an authorized representative of the right holder. The renewal of a post-mortem right under subparagraph (A)(iv)(II)(bb) shall be effective if, during the applicable 2-year renewal period described in that subparagraph, the right holder files a notice with the Register of Copyrights that complies with such requirements regarding form and filing procedures as the Register of Copyrights may prescribe by regulation, which shall include— the name of the deceased individual; a statement, under penalty of perjury, that the right holder has engaged in active and authorized public use of the voice or visual likeness during the applicable 2-year period; the identity of and contact information for the right holder; and such other information as the Register of Copyrights may prescribe by regulation. The Register of Copyrights— shall— maintain a current directory of post-mortem digital replication rights registered under this subparagraph; and make the directory described in item (aa) available to the public for inspection online; and may require payment of a reasonable filing fee by the right holder filing notice under clause (i), which may take into consideration the costs of maintaining the directory described in subclause (I) of this clause. A right holder may voluntarily register the post-mortem right under subparagraph (A)(iv)(II)(aa) by filing a notice with the Register of Copyrights that complies with such requirements regarding form, content, and filing procedures as the Register of Copyrights may prescribe by regulation. The Register of Copyrights may— include a voluntary registration of the post-mortem right under subparagraph (A)(iv)(II)(aa) in the directory maintained under clause (ii)(I)(aa) of this subparagraph; and require payment of a reasonable filing fee by a right holder registering a right under this clause, which may take into consideration the costs of maintaining the directory. The Register of Copyrights may make such interpretations and resolve such ambiguities as may be appropriate to carry out this subparagraph. A digital replica that is embodied in a sound recording, image, audiovisual work, including an audiovisual work that does not have any accompanying sounds, or transmission, and the use of which is authorized pursuant to the terms of a license, may continue to be utilized in a manner consistent with the terms of that license after the expiration or termination of the license. Any individual or entity that, in a manner affecting interstate commerce (or using any means or facility of interstate commerce), engages in an activity described in paragraph (2) shall be liable in a civil action brought under subsection (e). An activity described in this paragraph is either of the following: The public display, distribution, transmission, or communication of, or the act of otherwise making available to the public, a digital replica without authorization by the applicable right holder. Distributing, importing, transmitting, or otherwise making available to the public a product or service that— is primarily designed to produce 1 or more digital replicas of a specifically identified individual or individuals without the authorization of— such individual or individuals; the applicable right holder; or the law; has only limited commercially significant purpose or use other than to produce a digital replica of a specifically identified individual or individuals without the authorization of— such individual or individuals; the applicable right holder; or the law; or is marketed, advertised, or otherwise promoted by the individual or entity described in paragraph (1), or another individual or entity acting in concert with the individual or entity described in paragraph (1) with the knowledge of the individual described in paragraph (1), as a product or service designed to produce a digital replica of a specifically identified individual or individuals without the authorization of— such individual or individuals; the applicable right holder; or the law. To incur liability under this subsection— with respect to an activity carried out under paragraph (2) by the provider of an online service, the provider must have received a notification that satisfies the requirements under subsection (d)(3), or a court order stating (or must have willfully avoided receipt of such a notification or court order), that the applicable material is— a digital replica that was not authorized by the applicable right holder; or a product or service described in paragraph (2)(B); and with respect to an activity carried out under paragraph (2) by an individual or entity that is not a provider of an online service, the individual or entity must have actual knowledge, or must willfully avoid having such knowledge, that the applicable material is— a digital replica that was not authorized by the applicable right holder; or a product or service described in paragraph (2)(B). Liability under this subsection shall not extend to— a service by wire or radio that provides the capability to transmit data to and receive data from all, or substantially all, internet endpoints, including any capabilities that are incidental to enable the operation of the communications service of a provider of online services or network access, or the operator of facilities for such service; or a provider of an online service alleged to have undertaken an activity described in paragraph (2) if— it is not technologically feasible for that provider to disable access to the offending material, or disable the reference or link to that material, at the specific location identified in the applicable notification sent under subsection (d)(3); or disabling access to the offending material is prohibited by law. An activity shall not be considered to be an activity described in paragraph (2) if— the applicable digital replica is produced or used in a bona fide news, public affairs, or sports broadcast or account, provided that the digital replica is the subject of, or is materially relevant to, the subject of that broadcast or account; the applicable digital replica is a representation of the applicable individual as the individual in a documentary or in a historical or biographical manner, including some degree of fictionalization, unless— the production or use of that digital replica creates the false impression that the work is an authentic sound recording, image, transmission, or audiovisual work in which the individual participated; or the digital replica is embodied in a musical sound recording that is synchronized to accompany a motion picture or other audiovisual work, except to the extent that the use of that digital replica is protected by the First Amendment to the Constitution of the United States; the applicable digital replica is produced or used consistent with the public interest in bona fide commentary, criticism, scholarship, satire, or parody; the use of the applicable digital replica is fleeting or negligible; or the applicable digital replica is used in an advertisement or commercial announcement for a purpose described in any of clauses (i) through (iv) and the applicable digital replica is relevant to the subject of the work so advertised or announced. Subparagraph (A) shall not apply where the applicable digital replica is used to depict sexually explicit conduct, as defined in section 2256(2)(A) of title 18, United States Code. No individual or entity shall be directly or secondarily liable under this section for an activity described in subsection (c)(2)(A) by virtue of distributing, importing, transmitting, or otherwise making available to the public a product or service unless the product or service is a product or service described in subsection (c)(2)(B). The provider of an online service shall not be liable for referring or linking to, or violating subsection (c) with respect to, user uploaded material if— for the provider of an online service described in subsection (a)(5)(A)(iii) (other than a search engine or a search component of a service), the provider has adopted and reasonably implemented, and has informed users of the online service of, a policy that provides for the termination in appropriate circumstances of account holders of the online service that are repeat violators of subsection (c)(2), provided that the failure to terminate a particular account holder in accordance with that policy shall subject the provider of the online service to potential liability only with respect to violating content posted by that account holder; and upon receiving a notification that satisfies the requirements under paragraph (3), the provider— removes or disables access to the work embodying the claimed unauthorized digital replica or the product or service specifically identified in a notice sent under that paragraph, or, as applicable, the link or reference to the unauthorized digital replica or product or service, as soon as is technically and practically feasible for that provider; for the provider of an online service described in clause (i) or (ii) of subsection (a)(5)(A), as soon as is technically and practically feasible for that provider, removes or disables access to all other publicly available instances of the work embodying the claimed unauthorized digital replica that— match the digital fingerprint of an unauthorized digital replica specifically identified in a notification sent under paragraph (3); and are uploaded after valid, applicable notice was submitted to, and processed by, the provider; and takes reasonable steps to promptly notify the right holder, and the end user that uploaded the material, that the online service removed or disabled access to the material. A provider of an online service described in clause (i) or (ii) of subsection (a)(5)(A) shall register a designated agent in accordance with this paragraph. To designate an agent under clause (i), the provider of an online service shall make available through the online service, including on the website of the online service in a location accessible to the public, and provide to the Copyright Office, substantially the following information: The name, address, telephone number, and electronic mail address of the agent. Other contact information that the Register of Copyrights may determine appropriate. The Register of Copyrights— shall— maintain a current directory of designated agents for the purposes of this paragraph; and make the directory described in subclause (I) available to the public for inspection, including through the internet; and may require payment of a fee by the provider of an online service to cover the costs of maintaining the directory described in clause (i)(I). The failure of a provider of an online service described in subparagraph (A)(i) to register a designated agent under this paragraph shall establish that the provider has not undertaken a good faith effort to comply with this subsection. To be effective under this subsection, a notification of a claimed violation of the right described in subsection (b) shall be a written communication provided to the designated agent of the provider of an online service that includes the following: A physical or electronic signature of the right holder, an individual or entity authorized to act on behalf of the right holder, or an eligible plaintiff under subsection (e)(1). Identification of the individual, the voice or visual likeness of whom is at issue with respect to an unauthorized digital replica or a product or service described in subsection (c)(2)(B). Identification of the material containing an unauthorized digital replica or a product or service described in subsection (c)(2)(B), including information sufficient to allow the provider to locate the identified material. Information reasonably sufficient to permit the provider to contact the notifying party, such as an address, telephone number, and email address. A statement that the notifying party believes in good faith that the material is an unauthorized use of a digital replica or a product or service described in subsection (c)(2)(B). If not the right holder or an eligible plaintiff under subsection (e)(1), a statement that the notifying party has the authority to act on behalf of the right holder. For the purposes of paragraph (1)(B), information reasonably sufficient to— identify the reference or link to the material or activity claimed to be an unauthorized digital replica, or a product or service described in subsection (c)(2)(B), that is to be removed or to which access is to be disabled; and permit the provider to locate the reference or link described in clause (i). It shall be unlawful to knowingly materially misrepresent under paragraph (3)— that the material requested to be removed is an unauthorized digital replica; that an individual or entity has the authority to act on behalf of the right holder; or that a digital replica or a product or service described in subsection (c)(2)(B) is not authorized by the right holder or by other law. The failure to undertake a good faith review to determine whether material with respect to which notice is provided under paragraph (3) qualifies as a digital replica shall constitute a knowing material misrepresentation under this subparagraph. In addition to a cause of action that is available under subsection (e), any individual or entity that violates subparagraph (A) of this paragraph shall be liable to the alleged violator that uploaded the applicable material, or the provider of an online service injured by the misrepresentation, for an amount equal to the greater of— $25,000 per notification sent under paragraph (3) that contains a misrepresentation described in subparagraph (A) of this paragraph; or any actual damages, including costs and attorney’s fees, incurred by the alleged violator, as well as by any provider of an online service injured by the reliance of the provider on the misrepresentation in removing or disabling access to the material or activity claimed to be an unauthorized digital replica. A civil action against an individual or entity that, in a manner affecting interstate commerce (or using any means or facility of interstate commerce), engages in an activity described in subsection (c)(2) may be brought by— the applicable right holder; if the applicable right holder is an individual who is younger than 18 years of age, a parent or guardian of that individual; or in the case of a digital replica involving a sound recording artist, any individual or entity that has, directly or indirectly, entered into— a contract for the exclusive personal services of the sound recording artist as a sound recording artist; or an exclusive license to distribute or transmit 1 or more works that capture the audio performance of the sound recording artist. A civil action may not be brought under this subsection unless the civil action is commenced not later than 3 years after the date on which the party seeking to bring the civil action discovered, or with due diligence should have discovered, the applicable violation. It shall not be a defense in a civil action brought under this subsection that the defendant displayed or otherwise communicated to the public a disclaimer stating that the applicable digital replica, or the applicable product or service described in subsection (c)(2)(B), was unauthorized or disclosed that the digital replica, product, or service was generated through the use of artificial intelligence or other technology. In any civil action brought under this subsection— an individual or entity that engages in an activity described in subsection (c)(2)(A) shall be liable to the injured party in an amount equal to the greater of— in the case of an individual, $5,000 per work embodying the applicable unauthorized digital replica; in the case of a provider of an online service that has undertaken a good faith effort to comply with subsection (d), $25,000 per work embodying the applicable unauthorized digital replica; in the case of a provider of an online service that has not undertaken a good faith effort to comply with subsection (d), $5,000 per display, copy made, transmission, and instance of the unauthorized digital replica being made available on the online service in a sum of not more than $750,000 per work embodying the applicable unauthorized digital replica; and in the case of an entity that is not a provider of an online service, $25,000 per work embodying the applicable unauthorized digital replica; or any actual damages suffered by the injured party as a result of the activity, plus any profits from the unauthorized use that are attributable to such use and are not taken into account in computing the actual damages; an individual or entity that engages in an activity described in subsection (c)(2)(B) shall be liable to the injured party in an amount equal to the greater of— in the case of an individual, $5,000 per product or service; in the case of a provider of an online service that has undertaken a good faith effort to comply with subsection (d), $25,000 per product or service; in the case of a provider of an online service that has not undertaken a good faith effort to comply with subsection (d), $750,000 per product or service; or in the case of an entity that is not a provider of an online service, $25,000 per product or service; or any actual damages suffered by the injured party as a result of the activity, plus any profits from the unauthorized use that are attributable to such use and are not taken into account in computing the actual damages; the plaintiff may seek injunctive or other equitable relief; in the case of willful activity in which the injured party has proven that the defendant acted with malice, fraud, knowledge, or willful avoidance of knowledge that the conduct violated the law, the court may award to the injured party punitive damages; and if the prevailing party is— the party bringing the action, the court shall award reasonable attorney’s fees; or the party defending the action, the court shall award reasonable attorney’s fees if the court determines that the action was not brought in good faith. A provider of an online service that has designated an agent under subsection (d)(2) and has an objectively reasonable belief that material that is claimed to be an unauthorized digital replica does not qualify as a digital replica shall be liable only for actual damages under subparagraph (A) if the material is ultimately determined to be an unauthorized digital replica. If the end user that uploaded the material that the provider of an online service has removed, or to which the provider of an online service has disabled access, brings an action in a court of the United States against the sender of a notification under subsection (d)(3) claiming that such notification was false or deceptive, as described in subsection (d)(4), the provider may, if the action is brought not later than 14 days after the end user receives notice that the provider has removed or disabled access to the material, restore the removed material to the network of the provider for access by members of the public without monetary liability therefor to either the notice sender or the end user that uploaded the material to which the provider had removed or disabled access. A right holder, an individual or entity authorized to act on behalf of a right holder, or an eligible plaintiff under subsection (e)(1) may request the clerk of any district court of the United States to issue a subpoena to a provider of an online service for identification of an alleged violator of this section in accordance with this subsection. A request under paragraph (1) may be made by filing with the clerk— a copy of a notification described in subsection (d)(3); a proposed subpoena; and a sworn declaration to the effect that— the purpose of the subpoena is to obtain the identity of an individual or entity alleged to be liable under subsection (c); and the information described in clause (i) will only be used for the purpose of protecting rights under this section. A subpoena issued under this subsection shall authorize and order the provider of the applicable online service to expeditiously disclose to the party that sought the subpoena information sufficient to identify the alleged violator by virtue of the activity described in the notification to the extent that information is available to the provider of the online service. If a proposed subpoena under this subsection is in proper form, the applicable notification filed satisfies the requirements under subsection (d)(3), and the accompanying declaration is properly executed, the clerk shall expeditiously issue and sign the proposed subpoena and return the subpoena to the requester for delivery to the provider of the applicable online service. The rights established under this Act shall preempt any cause of action under State law for the protection of an individual’s voice and visual likeness rights in connection with a digital replica, as defined in this Act, in an expressive work. Notwithstanding paragraph (1), nothing in this Act may be construed to preempt— causes of action under State statutes or common law in existence, as of January 2, 2025, regarding a digital replica; causes of action under State statutes specifically regulating a digital replica depicting sexually explicit conduct, as defined in section 2256(2)(A) of title 18, United States Code, or an election-related digital replica; or causes of action under State statutes or common law in existence, as of January 2, 2025, for the distributing, importing, transmitting, or otherwise making available to the public a product or service capable of producing 1 or more digital replicas. This section shall be considered to be a law pertaining to intellectual property for the purposes of section 230(e)(2) of the Communications Act of 1934 (47 U.S.C. 230(e)(2)). Except as expressly provided in subsection (d)(1)(B)(ii), nothing in this section may be construed to require the provider of an online service to— monitor the online service for, or affirmatively seek facts about, any digital replica; or gain access to material. If any provision of this section, or the application of a provision of this section, is held to be invalid, the validity of the remainder of this section, and the application of that provision to other individuals, entities, and circumstances, shall not be affected by that holding. Liability under this section shall apply only to— conduct occurring after the date of enactment of this Act; and in the case of conduct covered by a license or contract, a license or contract that is executed after the date of enactment of this Act. The right granted under subsection (b)— shall apply to any individual, regardless of whether the individual dies before or after the date of enactment of this Act; and in the case of a right holder who has died before the date of enactment of this Act, shall vest in the executors, heirs, assigns, or devisees of the right holder. This Act shall take effect on the date that is 180 days after the date of enactment of this Act.