The NO FAKES Act Needs Changes to Protect Video Games
The Nurture Originals, Foster Art, and Keep Entertainment Safe (NO FAKES) Act, first introduced in 2024 by Sens. Chris Coons (D-DE) and Marsha Blackburn (R-TN), aims to strengthen individuals’ intellectual property (IP) rights by creating a federal “right of publicity” that protects individuals against unauthorized use of their likenesses, images, and voices, including via digital replicas. This goal is important, and Congress should pass NO FAKES, but not without updating its definition of “digital replica” to avoid unintended consequences, especially in the gaming industry.
The bill’s right of publicity would apply not just to celebrities but also to everyday Americans. This federal approach is urgently needed, as state governments have created a patchwork of conflicting laws governing digital replicas, some of which muddle legal jurisdictions, use vague language that creates marketplace uncertainty, or undermine free speech. NO FAKES would preempt future state digital replica laws, though not existing ones. It would prohibit the complete transfer of property rights to third parties—such as agents, film studios, or advertising agencies—while a performer is alive, ensuring performers retain control over their likeness and safeguarding them against coercion.
In recent years, generative artificial intelligence (AI) has made it possible to more quickly and easily replicate individuals’ likenesses and voices. Deepfakes—realistic-looking images and videos produced with AI that portray someone doing or saying something that never actually happened—are a form of digital replica with many harmful uses, from disinformation to defamation. But there are legitimate uses too. Studios can scan performers to replicate their image or voice in a movie, song, TV show, or video game. For example, the Apple TV+ show Ted Lasso used digital doubles to fill stadiums with fans. Even outside entertainment, AI can dub videos into different languages so users around the world can access content in their native tongue, serve as language-learning tutors, or assist patients in speech therapy. The medical field can also use AI-powered training simulations to practice interacting with realistic patient scenarios.
In addition, video games heavily rely on digital replicas. Games like Death Stranding, Cyberpunk 2077, and Madden NFL feature digital versions of actors such as Keanu Reeves, Mads Mikkelsen, and Norman Reedus, in addition to professional athletes across the National Football League. The actors’ union SAG-AFTRA in 2025 voted to update its digital replica protections for video game performers, creating specific rules for compensation. Video games also use digital replicas to create background characters. Because video games are not recorded like live-action television and movies, the gaming industry relies on digital replica technology to make games realistic and lifelike.
NO FAKES’s broad definition of “digital replica”—”a newly created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual … in which the individual did not actually perform or appear”—will sweep up legitimate and relatively harmless uses of digital replicas, particularly in the gaming industry, with harmful deepfakes. This could lead to publishers and platforms censoring content and removing key features that users enjoy. For example, what if a user creates a character on Sims, a world-building simulation computer game, that closely resembles a real person? To avoid litigation, Sims may restrict the level of customization available to users, which would undermine the appeal of the game. According to the Entertainment Software Association (ESA), “The NO FAKES Act as currently drafted creates a level of uncertainty that poses a real threat to existing games and to the future of video game development in the United States.”
An overly broad definition of digital replicas that includes legitimate uses would also impact small game developers’ ability to innovate and experiment with new technologies like voice synthesis, procedural generation, and non-player characters (NPCs). ESA says, “[NO FAKES] fails to adequately differentiate between tools and services built specifically to enable the creation of harmful digital replicas, and the potential for third-party abuse of innovative, multi-purpose, and otherwise legitimate tools capable of creating digital replicas.”
To replace the growing patchwork of state digital replica legislation, the United States needs a federal right of publicity and better IP protections for performers that still allow for innovation in entertainment and protect innovation in digital replica technology for legitimate purposes. Congress should pass the NO FAKES Act with some changes that account for the needs of the entertainment industry as a whole, including video games.
