MPA Statement to the Senate Judiciary Committee IP Subcommittee Regarding a Potential Federal Digital-Replica Right

While the title of the July 12 hearing indicated a focus on copyright, much of the discussion centered on a separate, non-copyright issue: the potential enactment of a new federal statute regulating the use of individuals’ names, images, and likenesses (“NIL”), as a means to address some of the concerns raised by recent developments in artificial intelligence. The MPA has been deeply engaged on NIL issues in state legislatures for many decades and stands willing to work with Congress and other stakeholders to address the concerns of recording artists, actors, and others about the use of digital replicas to replace their performances without their consent, as well as uses that deceive the public. Many of these concerns, and the proposed legislative responses to them, have been framed under the rubric of the “right of publicity.” As described in this statement, however, many of the concerns animating the discussion and proposed solutions have little in common with the traditional right of publicity—an area in which there exists a robust and established body of legal jurisprudence, the development of which the MPA and its members have been actively engaged in to ensure the protection of important speech-related interests.