USA – NEW YORK Trends and Developments Contributed by: Nancy E Wolff, Scott J Sholder and Elizabeth Safran, Cowan, DeBaets, Abrahams & Sheppard LLP
The Digital Replica and Associated Copyright and AI Law Introduction With 2024 drawn to a close, one thing is clear – the advent, usage and transformative capaci - ties of generative artificial intelligence (AI) have continued apace this past year. Businesses have continued to incorporate the technol - ogy into their operations, AI companies have continued to launch and update their suites of products, and government agencies and courts have continued to grapple with the landscape of legal issues raised in the burgeoning technol - ogy’s wake. Within this landscape, individuals – from politi - cians and actors to musicians and private citi - zens – have faced significant challenges, first and foremost the ease with which AI has allowed for the creation and dissemination of unauthor - ised digital replicas, or “deepfakes” as they are colloquially known. Capitalising on an individu - al’s unique image and/or voice, these replicas – which may take the form of a video, still image, or audio recording – present an ever-increasing threat, particularly considering the hyper-real depictions AI now makes possible. Everyone from business analysts to recording artists have taken note, as bad actors have used AI to fraud - ulently persuade corporations to transfer funds based on the replication of a CEO’s voice pur - portedly giving such authorisation (see Courtney Adante, Deepfakes in 2024 are Suddenly Deeply Real: An Executive Briefing on the Threat and Trends, Teneo (25 April 2024)), and new tracks have been released “by” high-profile artists, such as a Drake and The Weeknd song that gar - nered millions of views and streams before being pulled as it came to light that the falsified work had unauthorisedly replicated each artists’ voice (see Bill Donahue, Fake Drake & The Weeknd
Song – Made With AI – Pulled From Streaming After Going Viral, BILLBOARD (17 April 2023)). Facing the skyrocketing volume and breadth of unauthorised digital replicas, this past year policymakers have increasingly begun taking note. State lawmakers as well as government agencies have begun to assess, and in some instances, indeed implement, policies to curb the threats posed by digital replicas. One thing most agree on, even at this nascent juncture, is that action must be taken to channel uses of generative AI for purposes of enhanced creativ - ity, not for purposes of supplanting individuals’ rights as to their creative output or indeed their actual personas by allowing the creation, use, and dissemination of unauthorised digital rep - licas. Part 1 of the US Copyright Office’s report The US Copyright Office launched an initiative in 2023 to examine copyright law and related policy issues associated with AI. Undertaking a series of public listening sessions and webinars on numerous AI-IP topics including digital repli - cas, as well as the use of copyrighted works as AI training data and the copyrightability of AI- generated output, the Office subsequently pub - lished a notice of inquiry in the Federal Register that received over 10,000 comments. In 2024 it began putting forth its guidance and recommen - dations on these topics. On 31 July 2024, spe - cifically, it released Part 1 of its overall Report, particularly addressing digital replicas. Investigating the state of existing protections coupled with the many concerns raised in the comments it received, the Office has ultimate - ly recommended a new federal law to protect individuals against the appropriation of their personas, owing, particularly, to “[t]he speed, precision, and scale of AI-created digital repli -
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