Cracking Down on AI

On August 9, 2024 Illinois became the second state to implement legislation aiming to prevent the use of generative artificial intelligence systems (“AI”) to create unauthorized digital replicas of individuals. Tennessee led the way with the Ensuring Likeness Voice and Image Security Act (“ELVIS”) Act which went into effect July 1, 2024, achieving a similar goal.

The Illinois Rights of Publicity Act (the “Act”) states that, “[a] person may not knowingly distribute, transmit, or make available to the general public a sound recording or audiovisual work with actual knowledge that the work contains an unauthorized digital replica.” With digital replica being defined as, “[a] newly created, electronic representation of the voice, image, or likeness of an actual individual created using a computer, algorithm, software, tool, artificial intelligence, or other technology that is fixed in a sound recording or audiovisual work in which that individual did not actually perform or appear, and which a reasonable person would believe is that particular individual’s voice, image, or likeness being imitated.”

Moreover, the Act creates civil liability for anyone who “contributes to” or “induces” a distribution of an unauthorized digital replica after gaining actual knowledge that the distributor is violating a person’s publicity rights. If an actor lacks actual knowledge, but demonstrates a willful disregard of facts or circumstances that would create actual knowledge, can also be held liable under the new law.

In addition to the state legislation, on July 31, 2024, a bipartisan bill named The Nurture Originals, Foster Art, and Keep Entertainment Safe Act of 2024 (the “NO FAKES Act”), was introduced in the senate. The NO FAKES Act similarly appears to strive to prevent the unauthorized creative of digital replicas of an individual’s name and likeness using generative AI, supported by a claim that it “balances the need to protect individuals and creators, First Amendment considerations, and fostering U.S. leadership and innovation in AI.”

We will continue to monitor and provide updates on any significant developments.