December 18, 2023
Dear Senators Coons, Blackburn, Klobuchar, and Tillis,
We the undersigned are a bipartisan coalition of unapologetic defenders of free expression writing to
express our concerns with the recently released draft legislation called the Nurture Originals, Foster Art,
and Keep Entertainment Safe, or NO FAKES Act. While well-intentioned, as released, the bill would give
both celebrities and ordinary people sweeping powers to control generative AI tools.
Protection against generative AI related harms is a worthy goal – and we understand performers’
concerns about having their performances replaced by digital replicas without their consent. Moreover,
we share broader policymaker concerns with malicious actors exploiting this technology to create
“deepfakes” that can be used to peddle disinformation and harm ordinary people.
But in its zeal to protect performers from AI clones, the draft legislation goes too far-reaching well
beyond its stated goals by introducing sweeping liability for commonplace uses of AI tools in
professionally produced media, and even amateur web videos and songs, while at the same time
creating new barriers to small creators and undermining free expression.
Overbroad restrictions on this technology will also have consequences that extend far beyond the film,
television and music industries. Generative AI tools may be legitimately utilized by journalists, historians,
video game developers, forensic scientists, marketers, product designers, doctors, educators, engineers,
political activists, and students to enhance their work and tell compelling stories with fidelity to their
For instance, the island nation of Tuvalu is looking to create a digital replica of their entire country to
preserve their culture from the threat of rising tides, and law enforcement is exploring the use of
generative AI for crime scene reconstruction. Additionally, generative AI tools enabled the production of
content which otherwise would have been unachievable due to government restrictions imposed on
content creators during the COVID-19 pandemic.
The “Right to be Forgotten” in Europe should also serve as a cautionary tale. While intended to protect
average people from potential reputational harms enabled by the internet, the doctrine was
manipulated in Europe by various parties, including political candidates, the affluent, and even
criminals, to selectively control their narratives and information accessible about them. Overbroad
restrictions on generative AI have the potential for similar misuse. This could extend to the estates of
individuals who might employ legal tactics to suppress artists and individuals from depicting
controversial figures. It is essential to safeguard the freedom of creators to depict stories about
individuals like Roger Ailes and Harvey Weinstein without the threat of legal reprisal.
These issues predate AI. Indeed, state “right of publicity” laws protect performers against the
unauthorized use of their name, image, likeness, and voice for commercial purposes without suppressing
First Amendment protected speech. Many of these laws achieve this vital balance through the inclusion
of statutory exemptions for “expressive works” such as movies, shows, books, songs, news reporting and
more. The NO FAKES Act includes some protections – but lacks several important expressive works
exemptions that are routine in modern state right of publicity laws – marking a dangerous expansion of
state power into the realm of free expression.
Media has always been used to speak truth to power, shed sunlight on leaders and institutions and
depict public and historical figures. As the California Court of Appeal explained in De Havilland v FX
Books, films, plays, and television shows often portray real people. Some are famous and some are just ordinary folks. Whether a person portrayed in one of these expressive works is a world-renowned film star—“a living legend”—or a person no one knows, she or he does not own history. Nor does she or he have the legal right to control, dictate, approve, disapprove, or veto the creator’s portrayal of actual people.
The NO FAKES Act would eviscerate this principled standard.
Overbroad restrictions on generative AI tools could also disproportionately harm small creators, to the
benefit of large, incumbent companies. Without adequate expressive works exemptions, creators would be forced to try to prove to courts that a particular use is protected by the First Amendment—an
onerous and expensive task. While large corporations can afford to employ armies of First Amendment
lawyers to defend their rights, small creators can’t, and would thus shy away from legitimate uses of
generative AI that could be challenged by unhappy celebrities or others. By imposing unbalanced
limitations on this technology, the NO FAKES Act risks reinforcing a structure that primarily benefits
those with the financial means to assert their First Amendment rights.
Crucially, the inclusion of expressive works exemptions would not deprive performers or citizens of legal
recourse to defend themselves. For instance, Tom Hanks recently warned fans that an online video
featuring his likeness promoting a dental plan was fabricated. Fortunately, any existing state right of
publicity law provides Mr. Hanks ample legal authority to protect himself from this clear violation and
others like it. Similarly, ordinary citizens can protect themselves from harmful uses of digital replicas
through well-established bodies of law addressing defamation and fraud.
We understand and support performers’ desire not to be digitally replaced in new works in which they
otherwise would have performed – as well as broader concerns regarding generative AI. But in crafting
this legislation, policymakers must take care not to overreach by banning legitimate uses that are fully
protected by the First Amendment. As currently written, we believe the discussion draft of the NO FAKES
Act fails to appropriately strike this balance and must be amended to address these concerns before
Director of Technology and Innovation Policy, American Action Forum
President, Committee for Justice
Director of Center for Technology and Innovation, Competitive Enterprise Insitute
President, Consumer Acton for a Strong Economy
Deputy Director, Consumer Choice Center
Vice President of Development, California Policy Center
President, Discovery Insitute
Executive Director, Foundation for American Innovation
Director, Center for Economic Opportunity, Independent Women’s Voice
Executive Director, Innovation Economy Alliance
President, Institute for Policy Innovation
Dr. Edward Longe
Director of the Center for Technology and Innovation, The James Madison Institute
Tech and Innovation Policy Analyst, Libertas Institute
Executive Vice President, National Taxpayers Union
Daniel J. Erspamer
Chief Executive Officer, Pelican Institute for Public Policy
Policy Director, Technology and Innovation, R Street Institute
President, Taxpayers Protection Alliance