Illinois Becomes Second State to Ban Unauthorized Digital Replicas Created by Generative AI

Last week, Illinois Governor J.B. Pritzker (D) signed HB 4875 into law, enacting several changes to the state’s Right of Publicity Act to create a cause of action against parties creating unauthorized digital replicas of individuals with the use of generative artificial intelligence (AI) systems. Illinois is now the second state in the nation to pass legislation preventing the use of an individual’s image, likeness, or voice without consent, an issue that is also being targeted by legislation introduced into the U.S. Senate just a few weeks ago.

Record Companies Contracting with Recording Artists Can Enforce Rights

Illinois’ Right of Publicity Act, which first became effective in 1999, already required written consent to use an individual’s likeness for commercial purposes during their lifetime and for 50 years following death. Along with the existing limitations regarding the use of an individual’s likeness, the new state bill adds that a person may not knowingly distribute or make public a sound recording or audiovisual work with actual knowledge that the work contains an unauthorized digital replica. The new state bill defines “digital replica” as a newly created electronic representation of an individual’s voice, image or likeness created by computer, AI system or other technology, in which the actual individual does not appear but a reasonable person would believe that a particular individual is being imitated.

Along with knowing distribution, the new Illinois state law also 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. In the absence of actual knowledge, willful disregard of facts or circumstances that would create actual knowledge can also create liability under the new law.

Parties that obtain actual knowledge or written notification of activity violating the state law who move expeditiously to disable access to the material, or notify the person having authority to disable access, can evade liability under the law. Further, the new law also incorporates the Digital Millennium Copyright Act’s (DMCA) safe harbor provisions for transmissions of copyright infringing material codified at 17 U.S.C. § 512.

Enhanced enforcement mechanisms for individuals who are recording artists are also a feature of the amended Illinois right of publicity law. Recording artists themselves or parties contracting with recording artists to obtain an exclusive license for distributing audio recordings capturing the artist’s audio performances are each authorized to enforce their rights against unauthorized digital replicas prohibited by the new law.

Broadband Providers Creating Unauthorized Replicas Could Be Liable Under New Law

Several uses of an individual’s likeness or digital replica are not actionable under the terms of Illinois’ recently passed publicity law. The use of an individual’s identity in news, sports broadcast or for political or public interest purposes do not create liability, unless the use of a digital replica is intended to create, and actually creates, the false impression that the work is an authentic recording. Also excepted from liability are uses of digital replicas to represent individuals in a documentary or biographical work, regardless of any fictionalization, unless the use creates a false impression to a reasonable viewer that the replica is an authentic recording. Finally, uses of digital replicas for satire or parody do not create liability, nor do promotional materials or commercial announcements for uses permitted under the Illinois right of publicity law.

While Illinois’ new state law on digital replicas mainly targets unauthorized depictions of an individual’s image or voice, the law adopts a wide definition for generative AI that includes systems creating textual outputs. As well, the new law defines “person” such that broadband service providers could face liability, but only if those providers are responsible for creating the unauthorized digital replica.

Illinois’ new law against unauthorized digital replicas comes after Tennessee became the first state in the nation to penalize the creation of individual likenesses generated by AI when it enacted the Ensuring Likeness, Voice and the Image Security (ELVIS) Act this March. For the most part, provisions of Illinois’ new law match those enacted in Tennessee by the ELVIS Act. While there is currently no federal right of publicity, a bipartisan coalition of U.S. Senators proposed the creation of such a right in late July when they introduced the Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act. Passage of such a law was recommended by the U.S. Copyright Office in its report on digital replicas, which was published the same day as the introduction of the NO FAKES Act.