[Congressional Record Volume 172, Number 106 (Wednesday, June 24, 2026)]
[Senate]
[Pages S3299-S3303]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 6089. Mr. COONS (for himself and Mrs. Blackburn) submitted an
amendment intended to be proposed by him to the bill S. 4784, to
authorize appropriations for fiscal year 2027 for military activities
of the Department of Defense, for military construction, and for
defense activities of the Department of Energy, to prescribe military
personnel strengths for such fiscal year, and for other purposes; which
was ordered to lie on the table; as follows:
At the appropriate place, insert the following:
SEC. ___. VOICE AND VISUAL LIKENESS RIGHTS.
(a) Definitions.--In this section:
(1) Digital fingerprint.--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.
(2) Digital replica.--The term ``digital replica''--
(A) means a newly created, computer-generated, highly
realistic electronic representation that is readily
identifiable as the voice or visual likeness of an individual
that--
(i) is embodied in a sound recording, image, audiovisual
work, including an audiovisual work that does not have any
accompanying sounds, or transmission--
(I) in which the actual individual did not actually perform
or appear; or
(II) 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
(B) 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.
(3) Individual.--The term ``individual'' means a human
being, living or dead.
(4) Interactive computer service.--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) a service or system that provides access to the
internet; and
(B) such systems operated, or services offered, by
libraries or educational institutions.
(5) Online service.--The term ``online service''--
(A) means--
(i) any website, online application, mobile application, or
virtual reality environment that predominantly provides
public access to user uploaded material;
(ii) any digital music provider to which section 115 of
title 17, United States Code, applies, to the extent that the
digital music provider provides public access to a
significant amount of sound recordings that are predominantly
the fixation of sounds of a performance of a musical
composition and are user uploaded material, if that digital
music provider is not covered under clause (i); and
(iii) 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, aggregator of visual and audiovisual
works for licensing, or website hosting service or any other
interactive computer service that is not covered under clause
(i), and is not a digital music provider to which section 115
of title 17, United States Code, applies, but only if the
provider of that interactive computer service has registered
a designated agent with the Copyright Office under subsection
(d)(2); and
(B) does not include any website, online application,
mobile application, virtual reality environment, application
store, cloud storage service, or search engine, if the
primary function of that website, online application, mobile
application, virtual reality environment, application store,
cloud storage service, or search engine is to distribute,
import, transmit, or otherwise make available to the public a
product or service described in subsection (c)(2)(B).
(6) Right holder.--The term ``right holder'' means--
(A) 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
(B) 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).
(7) Sound recording artist.--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.
(8) User uploaded material.--The term ``user uploaded
material''--
(A) means material, such as a video, image, audio file, or
other similar material, that is placed on a service directly
by, or at the direction of, a consumer end user of a service;
and
(B) does not include material that is--
(i) embodied in a video game; and
(ii) generated or customized by a consumer end user of that
video game.
(b) Digital Replication Right.--
(1) In general.--Subject to the other provisions of this
section, each individual or right holder shall have the right
to authorize--
(A) the use of a digital replica embodying the voice or
visual likeness of the individual; or
(B) the use of the voice or visual likeness of the
individual 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).
(2) Nature of right.--
(A) In general.--The right described in paragraph (1) shall
have the following characteristics:
(i) The right is--
(I) a property right;
(II) not assignable during the life of the individual,
including through involuntary transfer, such as by means of
bankruptcy, levy, lien enforcement, court order, or other
legal process; and
(III) licensable, in whole or in part, exclusively or non-
exclusively, by the right holder.
(ii) 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.
(iii) Upon the death of the individual--
(I) the right is transferable and licensable, in whole or
in part, by the executors, heirs, assignees, licensees, or
devisees of the individual; and
(II) ownership of the right may be--
(aa) transferred, in whole or in part, by any means of
conveyance or by operation of law; and
(bb) bequeathed by will or pass as personal property by the
applicable laws of intestate succession.
(iv)(I) The right shall be exclusive to--
(aa) the individual, subject to the licensing of the right
during the lifetime of that individual under subparagraph
(B); and
(bb) the right holder--
(AA) for a period of 10 years after the death of the
individual; and
(BB) if the right holder demonstrates active and authorized
public use of the voice or visual likeness of the individual
in interstate or foreign commerce during the 2-year period
preceding the expiration of the 10-year period described in
subitem (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 in interstate or foreign
commerce during the 2-year period preceding the expiration of
each additional 5-year period.
(II) The commercial availability of a sound recording or
audiovisual work in which the voice or visual likeness of an
individual is readily identifiable shall constitute active
and authorized public use of that voice or visual likeness
for the purposes of subclause (I)(bb)(BB).
(v) The right shall terminate on the date that is the
earlier of--
(I) the date on which the 10-year period or 5-year period
described in clause (iv)(I)(bb) terminates without renewal;
or
(II) the date that is 70 years after the death of the
individual.
(B) Requirements for license.--
(i) In general.--A license described in subparagraph
(A)(i)(III)--
(I) while the applicable individual is living, is valid
only to the extent that the license duration does not exceed
10 years; and
[[Page S3300]]
(II) shall be valid only if the license agreement--
(aa) is in writing and signed by--
(AA) the applicable individual; or
(BB) in the case of a deceased individual, the right holder
or an authorized representative of the right holder; and
(bb) includes a reasonably specific description of the
intended uses of the applicable digital replica.
(ii) Licenses involving a minor.--A license described in
subparagraph (A)(i)(III) involving a living individual who is
younger than 18 years of age--
(I) 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
(II) shall be valid only if the license agreement--
(aa) is in writing and signed by the individual or an
authorized representative of the individual;
(bb) includes a reasonably specific description of the
intended uses of the digital replica; and
(cc) is approved by a court in accordance with applicable
State law.
(iii) Collective bargaining agreements.--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.
(iv) Limitation.--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.
(C) Requirements for post-mortem transfer.--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.
(D) Registration for post-mortem renewal.--
(i) In general.--The renewal of a post-mortem right under
subparagraph (A)(iv)(I)(bb)(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--
(I) the name of the deceased individual;
(II) a statement, under penalty of perjury, that the right
holder has engaged in active and authorized public use of the
voice or visual likeness in interstate or foreign commerce
during the applicable 2-year period;
(III) the identity of and contact information for the right
holder; and
(IV) such other information as the Register of Copyrights
may prescribe by regulation.
(ii) Directory.--The Register of Copyrights--
(I) shall--
(aa) maintain a current directory of post-mortem digital
replication rights registered under this subparagraph; and
(bb) make the directory described in item (aa) available to
the public for inspection online; and
(II) 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.
(iii) Voluntary initial registration.--
(I) In general.--A right holder may voluntarily register
the post-mortem right under subparagraph (A)(iv)(I)(bb)(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.
(II) Authority of register of copyrights.--The Register of
Copyrights may--
(aa) include a voluntary registration of the post-mortem
right under subparagraph (A)(iv)(I)(bb)(AA) in the directory
maintained under clause (ii)(I)(aa) of this subparagraph; and
(bb) 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.
(iv) Initial post-mortem registration for individuals
deceased 8 years or longer as of date of enactment.--
Notwithstanding any other provision of this paragraph--
(I) with respect to an individual who died not fewer than
10 years before the date of enactment of this Act, the
applicable right holder may, not later than 90 days after the
effective date of this section, voluntarily register the
post-mortem right under subparagraph (A)(iv)(I)(bb)(BB) by
filing with the Register of Copyrights a notice that complies
with such requirements as the Register of Copyrights may
prescribe by regulation under clause (i), if the right holder
demonstrates the required authorized public use of the voice
or visual likeness of the individual in interstate or foreign
commerce during the 2-year period preceding the date of
enactment of this Act, subject to protection during the
periods of exclusivity and termination under clauses (iv) and
(v) of subparagraph (A); and
(II) with respect to an individual who died not fewer than
8, and fewer than 10, years before the date of enactment of
this Act, the applicable right holder may file a notice under
clause (i) or subclause (I) of this clause.
(v) Authority of register of copyrights.--The Register of
Copyrights may make such interpretations and resolve such
ambiguities as may be appropriate to carry out this
subparagraph.
(E) Post-expiration or termination utilization of
authorized uses.--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.
(c) Liability.--
(1) In general.--Any individual or entity that, in a manner
affecting interstate or foreign commerce (or using any means
or facility of interstate or foreign commerce), engages in an
activity described in paragraph (2) shall be liable in a
civil action brought under subsection (e).
(2) Activities described.--An activity described in this
paragraph is either of the following:
(A) The public display, distribution, transmission, or
communication of, or the act of otherwise making available to
the public, including by acting as a third party commercial
supplier of sound recordings to a digital music provider, a
digital replica without authorization by the applicable right
holder.
(B) Distributing, importing, transmitting, or otherwise
making available to the public a product or service that--
(i) is primarily designed to produce 1 or more digital
replicas of a specifically identified individual or
individuals without the authorization of--
(I) such individual or individuals;
(II) the applicable right holder; or
(III) the law;
(ii) 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--
(I) such individual or individuals;
(II) the applicable right holder; or
(III) the law; or
(iii) 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 or entity 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--
(I) such individual or individuals;
(II) the applicable right holder; or
(III) the law.
(3) Notice or knowledge required.--To incur liability under
this subsection, the following shall apply:
(A)(i) With respect to an activity carried out under
paragraph (2) by the provider of an online service described
in clause (ii), the designated agent with respect to 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--
(I) a digital replica, the use of which was not authorized
by the applicable right holder; or
(II) a product or service described in paragraph (2)(B).
(ii) An online service described in this clause is an
online service that is--
(I) described in subsection (a)(5)(A)(i);
(II) described in subsection (a)(5)(A)(ii), with respect to
sound recordings that are predominantly the fixation of
sounds of a performance of a musical composition and are user
uploaded material; or
(III) described in subsection (a)(5)(A)(iii), with respect
to material placed on that online service by or at the
direction of a third party.
(B) With respect to an activity carried out under paragraph
(2) by an individual or entity that is not an online service,
or an activity carried out under paragraph (2) by the
provider of an online service that is not described in
subparagraph (A)(ii), the individual or entity must have
actual knowledge, or must willfully avoid having such
knowledge, that the applicable material is--
(i) a digital replica, the use of which was not authorized
by the applicable right holder; or
(ii) a product or service described in paragraph (2)(B).
(4) Exclusions.--Liability under this subsection shall not
extend to--
(A) 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;
(B) a provider of an online service described in paragraph
(3)(A)(ii) alleged to have undertaken an activity described
in paragraph (2) if--
(i) it is not technologically or practically 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
[[Page S3301]]
(ii) disabling access to the offending material is
prohibited by law;
(C) a nonprofit library or archives--
(i) that is eligible for the limitations on exclusive
rights under section 108 of title 17, United States Code;
(ii) the collections of which are--
(I) open to the public; or
(II) available not only to researchers affiliated with the
library or archives, or with the institution of which the
library or archives is a part, but also to other persons
doing research in a specialized field;
(iii) that has a public service mission;
(iv) the trained staff or volunteers of which provide
professional services normally associated with libraries and
archives; and
(v) the collections of which are composed of lawfully
acquired or licensed materials that are made available
consistent with the requirements of title 17, United States
Code;
(D) an accredited nonprofit educational institution with
respect to an activity undertaken without any purpose of
direct or indirect commercial advantage;
(E) an employee of an institution described in subparagraph
(C) or (D) acting within the scope of the employment of that
individual;
(F) any other person solely with respect to providing
online or network access services to an institution described
in subparagraph (C) or (D) in the course of providing those
services to that institution; or
(G) an individual or entity that is not an online service,
if, upon obtaining actual knowledge of an activity described
in paragraph (2), the individual or entity acts as soon as
technologically and practically feasible to remove or disable
access to the applicable material.
(5) Additional exclusions.--
(A) In general.--An activity shall not be considered to be
an activity described in paragraph (2) if--
(i) the applicable digital replica is 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;
(ii) 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--
(I) the 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
(II) 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;
(iii) the applicable digital replica is used consistent
with the public interest in bona fide commentary, criticism,
scholarship, satire, or parody;
(iv) the use of the applicable digital replica is fleeting
or negligible; or
(v) 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.
(B) Applicability.--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.
(6) Voluntary use of tools to remove or disable access.--
The voluntary use of any tool to remove or disable access to
content shall not alone confer actual knowledge of a
particular violation of this section.
(d) Safe Harbors.--
(1) In general.--
(A) Products and services capable of producing digital
replicas.--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).
(B) Online services.--The provider of an online service
shall not be liable for an activity that violates subsection
(c), or for referring or linking to the material embodying an
unauthorized digital replica or a product or service
described in subsection (c)(2)(B), if--
(i) 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
(ii)(I) upon receiving a notification that satisfies the
requirements under paragraph (3), the provider--
(aa) removes or disables access to the work embodying the
claimed unauthorized use of a 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 use of a digital replica or product or
service, as soon as is technologically and practically
feasible for that provider;
(bb) for the provider of an online service described in
subsection (a)(5)(A)(i), as soon as is technologically and
practically feasible for that provider, removes or disables
access to all other publicly available instances of the work
embodying the claimed unauthorized use of a digital replica
that--
(AA) match the digital fingerprint of an unauthorized use
of a digital replica specifically identified in a
notification sent under paragraph (3); and
(BB) are uploaded after valid, applicable notice was
submitted to, and processed by, the provider;
(cc) for the provider of an online service described in
subsection (a)(5)(A)(ii), with respect to sound recordings
that are predominantly the fixation of sounds of a
performance of a musical composition and are user uploaded
material, as soon as is technologically and practically
feasible for that provider, removes or disables access to all
other publicly available instances of the work embodying the
claimed unauthorized use of a digital replica that--
(AA) match the digital fingerprint of an unauthorized use
of a digital replica specifically identified in a
notification sent under paragraph (3); and
(BB) are uploaded after valid, applicable notice was
submitted to, and processed by, the provider; and
(dd) takes reasonable steps to promptly notify the right
holder, and the party that placed the material on the online
service, that the online service removed or disabled access
to the material; and
(II) the provider, in the case that the provider receives a
counter-notification that satisfies the requirements under
paragraph (4) and opts to replace the removed material or
cease disabling access to that material--
(aa) takes reasonable steps to promptly provide the
individual or entity that provided the applicable
notification under paragraph (3) with a copy of the counter-
notification; and
(bb) not less than 14 days after the date on which the
provider receives that counter-notification, replaces the
removed material or ceases disabling access to that material,
unless an eligible plaintiff described in subsection (e)
brings an action under that subsection, in which case the
provider shall remove the material or disable access to the
material as soon as is technologically and practically
feasible for the provider.
(2) Designated agent.--
(A) Designation.--
(i) In general.--A provider of an online service described
in clause (i) or (ii) of subsection (a)(5)(A) shall, and a
provider of an online service that is described in subsection
(a)(5)(A)(iii) and is eligible for registration may, register
a designated agent in accordance with this paragraph.
(ii) Contents.--To designate an agent under clause (i), the
provider of an online service shall make available through
that online service, in a location accessible to the public,
and provide to the Copyright Office, substantially the
following information:
(I) The name, address, telephone number, and electronic
mail address of the agent.
(II) Other contact information that the Register of
Copyrights may determine appropriate.
(B) Directory.--The Register of Copyrights--
(i) shall--
(I) maintain a current directory of designated agents for
the purposes of this paragraph; and
(II) make the directory described in subclause (I)
available to the public for inspection, including through the
internet; and
(ii) 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).
(C) Effect of failure to designate.--There shall be
established a presumption that a provider of an online
service described in subparagraph (A)(i) has not undertaken a
good faith effort to comply with this subsection if the
provider has failed to register a designated agent under this
paragraph by the later of--
(i) the date that is 90 days after the effective date of
this section; or
(ii) the date that is 90 days after the date on which the
provider becomes a provider described in subparagraph (A)(i).
(3) Elements of notification.--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 registered
under this subsection with respect to the applicable provider
of an online service that includes the following:
(A) 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).
(B) Identification of the individual, the voice or visual
likeness of whom is at issue with respect to an unauthorized
use of a digital replica or a product or service described in
subsection (c)(2)(B).
(C) Identification of the material embodying an
unauthorized use of a 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.
[[Page S3302]]
(D) Information reasonably sufficient to permit the
provider to contact the notifying party, such as an address,
telephone number, and email address.
(E) A statement that the notifying party believes in good
faith that--
(i) the material is--
(I) a digital replica, the use of which is unauthorized; or
(II) a product or service described in subsection
(c)(2)(B); and
(ii) the exclusions under subsection (c)(5) do not apply.
(F) If not the right holder or an eligible plaintiff under
subsection (e)(1), a statement, under penalty of perjury,
that the notifying party has the authority to act on behalf
of the right holder.
(G) For the purposes of paragraph (1)(B), information
reasonably sufficient to--
(i) identify the reference or link to the material or
activity claimed to be or embodying an unauthorized use of a
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
(ii) permit the provider to locate the reference or link
described in clause (i).
(4) Elements of counter-notification.--To be effective
under this subsection, a counter-notification with respect to
a notification provided under paragraph (3) shall be a
written communication that satisfies the following:
(A) The counter-notification is provided--
(i) to the designated agent of the online service provider
to which that notification was submitted under paragraph (3);
and
(ii) by the party that placed the applicable material on
the online service.
(B) The counter notification includes the following:
(i) A physical signature, witnessed or attested to in
person by a licensed notary public, of the individual or
entity that placed the applicable material on the online
service.
(ii) An identification of the material that has been
removed or to which access has been disabled and the location
at which the material appeared before the material was
removed or access to the material was disabled.
(iii) Information that is reasonably sufficient to permit
the provider of the online service and the individual or
entity that provided the notification under paragraph (3) to
contact the party providing the counter-notification,
including an address, telephone number, and email address.
(iv) A statement made under penalty of perjury that the
party providing the counter-notification has a good faith
belief that the applicable material was removed, or access to
that material was disabled, as a result of mistake or
misidentification of the material to be removed or access to
which was to be disabled, which shall include a specific
assertion by the party providing the counter-notification
that such material--
(I) is not a digital replica;
(II) is an authorized use of a digital replica; or
(III) is an unauthorized use of a digital replica that
satisfies an exclusion under paragraph (4) or (5) of
subsection (c), a limitation on liability under subsection
(e)(3), or any other requirement with respect to a valid
legal defense, which shall include a succinct explanation of
how such material satisfies the applicable exclusion,
limitation, or requirement.
(v) A statement that the individual or entity that placed
the applicable material on the online service--
(I) consents to the jurisdiction of the district court of
the United States for the judicial district in which the
address provided under clause (iii) is located (or, if that
address is outside of the United States, for any judicial
district of the United States in which that individual or
entity may be found); and
(II) will accept service of process from--
(aa) the individual or entity that provided notification
under paragraph (3); or
(bb) an agent of the individual or entity described in item
(aa).
(5) Penalties for false or deceptive notice.--
(A) Knowing material representations.--
(i) In general.--It shall be unlawful to knowingly
materially misrepresent--
(I) in a notification provided under paragraph (3)--
(aa) that the material requested to be removed, or access
to which is requested to be disabled, is a digital replica,
the use of which is unauthorized;
(bb) that the exclusions under subsection (c)(5) do not
apply; or
(cc) that an individual or entity has the authority to act
on behalf of the right holder; or
(II) in a counter-notification provided under paragraph
(4), that--
(aa) material was removed, or access to material was
disabled, by mistake or misidentification;
(bb) the material removed, or to which access was disabled,
is not a digital replica; or
(cc) the material removed, or to which access was disabled,
is subject to an exclusion under subsection (c)(5), a
limitation on liability under subsection (e)(3), or any other
valid legal defense.
(ii) Failure to perform good faith review.--The failure to
consider in good faith any of the issues described in clause
(i)(I) before providing a notification under paragraph (3),
or any of the issues described in clause (i)(II) before
providing a counter-notification under paragraph (4), shall
constitute a knowing material misrepresentation under this
subparagraph.
(B) Penalties.--In addition to the cause of action and
remedies made available under subsection (e), any individual
or entity that violates subparagraph (A) of this paragraph
shall be liable to the applicable right holder, 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--
(i) $25,000 per notification provided under paragraph (3),
or counter-notification provided under paragraph (4), that
contains a misrepresentation described in subparagraph (A) of
this paragraph; or
(ii) the sum of--
(I) any actual damages incurred by the applicable right
holder or alleged violator, as well as by any provider of an
online service or other individual or entity injured by the
misrepresentation; and
(II) any costs and attorney's fees incurred by the
applicable recipient of a notification under paragraph (3),
or a counter-notification under paragraph (4), that prevails
in an action alleging that the notification or counter-
notification, as applicable, was false or deceptive.
(e) Civil Action.--
(1) Eligible plaintiffs.--A civil action against an
individual or entity that, in a manner affecting interstate
commerce (or using any means or facility of interstate
commerce), commits a violation of subsection (c) may be
brought by--
(A) the applicable right holder;
(B) if the applicable right holder is an individual who is
younger than 18 years of age, a parent or guardian of that
individual; or
(C) in the case of a digital replica involving a sound
recording artist, any individual or entity that has, directly
or indirectly, entered into--
(i) a contract for the exclusive personal services of the
sound recording artist as a sound recording artist; or
(ii) an exclusive license to distribute or transmit 1 or
more works that capture the audio performance of the sound
recording artist.
(2) Limitations period.--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.
(3) Limitation on liability for purely coincidental
resemblance.--
(A) In general.--An individual or entity shall not be
liable for engaging in an activity described in subsection
(c)(2)(A) if--
(i) the resemblance of the voice or visual likeness
embodied in the applicable digital replica to the voice or
visual likeness of the actual individual is purely
coincidental; and
(ii)(I) the actual individual has not achieved public
recognition; or
(II) the voice or visual likeness of the actual individual
does not have commercial value.
(B) Disclaimer not evidence.--A disclaimer regarding the
resemblance of the voice or visual likeness embodied in a
digital replica to the voice or visual likeness of any actual
individual shall not constitute evidence to support the
limitation under subparagraph (A).
(4) Defense not permitted.--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 use of a 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.
(5) Remedies.--
(A) In general.--In any civil action brought under this
subsection--
(i) an individual or entity found to have committed a
violation of subsection (c) shall be liable to the injured
party in an amount equal to the greater of--
(I)(aa) in the case of an individual, $5,000 per work
embodying the applicable unauthorized use of a digital
replica;
(bb) in the case of a provider of an online service that
has undertaken a good faith effort to implement all
applicable obligations of paragraphs (1) through (4) of
subsection (d), $25,000 per work embodying the applicable
unauthorized use of a digital replica;
(cc) in the case of a provider of an online service that
has not undertaken a good faith effort to implement all
applicable obligations of paragraphs (1) through (4) of
subsection (d), $5,000 per unauthorized display, copy made,
transmission, and instance of the digital replica being made
available on the online service in a sum of not more than
$750,000 per work embodying the applicable unauthorized use
of a digital replica; and
(dd) in the case of an entity that is not a provider of an
online service, $25,000 per work embodying the applicable
unauthorized use of a digital replica; or
(II) 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;
(ii) an individual or entity found to have violated
subsection (c) by virtue of engaging in an activity described
in subsection
[[Page S3303]]
(c)(2)(B) shall be liable to the injured party in an amount
equal to the greater of--
(I)(aa) in the case of an individual, $5,000 per product or
service;
(bb) in the case of a provider of an online service that
has undertaken a good faith effort to implement all
applicable obligations of paragraphs (1) through (4) of
subsection (d), $25,000 per product or service;
(cc) in the case of a provider of an online service that
has not undertaken a good faith effort to implement all
applicable obligations of paragraphs (1) through (4) of
subsection (d), $750,000 per product or service; or
(dd) in the case of an entity that is not a provider of an
online service, $25,000 per product or service; or
(II) 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;
(iii) the plaintiff may seek injunctive or other equitable
relief;
(iv) 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
(v) if the prevailing party is--
(I) the party bringing the action, the court shall award
reasonable attorney's fees; or
(II) 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.
(B) Objectively reasonable belief.--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 a digital replica, the use of which is
unauthorized, 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 a digital replica,
the use of which is unauthorized.
(f) Subpoena To Identify Violator.--
(1) Request.--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.
(2) Contents of request.--A request under paragraph (1) may
be made by filing with the clerk--
(A) a copy of a notification described in subsection
(d)(3);
(B) a proposed subpoena; and
(C) a sworn declaration to the effect that--
(i) the purpose of the subpoena is to obtain the identity
of an individual or entity alleged to be liable under
subsection (c); and
(ii) the information described in clause (i) will only be
used for the purpose of protecting rights under this section.
(3) Contents of subpoena.--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.
(4) Basis for granting subpoena.--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.
(g) Preemption.--
(1) In general.--The rights established under this section
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 section, in an expressive work.
(2) Rule of construction.--Notwithstanding paragraph (1),
nothing in this section may be construed to preempt--
(A) causes of action under State statutes or common law in
existence, as of January 2, 2025, regarding a digital
replica;
(B) 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
(C) 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.
(h) Rules of Construction.--
(1) Laws pertaining to intellectual property.--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)).
(2) No duty to monitor.--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--
(A) monitor the online service for, or affirmatively seek
facts about, any digital replica; or
(B) gain access to material.
(i) Severability.--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.
(j) Retroactive Effect.--
(1) Liabilities.--Liability under this section shall apply
only to--
(A) conduct occurring after the date of enactment of this
Act; and
(B) 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.
(2) Digital replication right.--The right granted under
subsection (b)--
(A) shall apply to any individual, regardless of whether
the individual dies before, on, or after the date of
enactment of this Act; and
(B) in the case of a right holder who has died before the
date of enactment of this Act, shall vest in the executors,
heirs, assignees, or devisees of the right holder.
(k) Effective Date.--This section shall take effect on the
date that is 180 days after the date of enactment of this
Act.
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