Congressional Hearing on AI Deepfake Protections Raises Questions Over Ownership

Country star Lainey Wilson and Recording Academy president/CEO Harvey Mason voiced their support for federal regulation of AI technology at a hearing conducted by the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet in Los Angeles on Friday (Feb. 2). 

“Our voices and likenesses are indelible parts of us that have enabled us to showcase our talents and grow our audiences, not mere digital kibble for a machine to duplicate without consent,” Wilson said during her comments. 

“The artists and creators I talk to are concerned that there’s very little protection for artists who see their own name or likeness or voice used to create AI-generated materials,” Mason added. “This misuse hurts artists and their fans alike.” 

“The problem of AI fakes is clear to everyone,” he continued later. “This is a problem that only Congress can address to protect all Americans. For this reason, the academy is grateful for the introduction of the No AI FRAUD Act,” a bill announced in January that aims to establish a federal framework for protecting voice and likeness. 

The star of the hearing was not from the music industry, though. Jennifer Rothman, a professor of law at University of Pennsylvania Law School, offered an eloquent challenge to a key provision of the No AI FRAUD act, which would allow artists to transfer the rights to their voice and likeness to a third party. 

It’s easy to imagine this provision is popular with labels, who historically built their large catalogs by taking control of artists’ recordings for perpetuity. However, Rothman argued that “any federal right to a person’s voice or likeness must not be transferable away from that person” and “there must be significant limits on licensing” as well.  

“Allowing another person or entity to own a living human being’s likeness or voice in perpetuity violates our fundamental and constitutional right to liberty,” she said.

Rothman cleverly invoked the music industry’s long history of perpetuity deals — a history that has upset many artists, including stars like Taylor Swift, over the years — as part of the reason for her objection. 

“Imagine a world in which Taylor Swift‘s first record label obtained rights in perpetuity to young Swift’s voice and likeness,” Rothman explained. “The label could then replicate Swift’s voice over and over in new songs that she never wrote and have AI renditions of her perform and endorse the songs and videos and even have holograms perform them on tour. In fact, under the proposed No AI Fraud Act, the label would be able to sue Swift herself for violating her own right of publicity if she used her voice and likeness to write and record new songs and publicly perform them. This is the topsy-turvy world that the draft bills would create.”

(Rothman’s reference to Swift was just one of several at the hearing. Rep. Kevin Kiley [R – CA] alluded to the debate over whether or not the singer would be able to make it to the Super Bowl from her performance in Tokyo, while Rep. Nathaniel Moran [R – TX] joked, “I have not mentioned Travis Kelce’s girlfriend once during this testimony.”)

Rothman pointed out that the ability to transfer voice or likeness rights in perpetuity potentially “threatens ordinary people” as well: They “may unwittingly sign over those rights as part of online Terms of Service” that exist on so many platforms and are barely ever read. In the music industry, there is a similar problem already causing problems for a number of young artists who sign up to distribute their music through an online service, agree to Terms of Service without reading them, and later discover that they have unknowingly locked their music into some sort of agreement. In an AI world, this problem could be magnified. 

Rothman’s comments put her at odds with the Recording Academy. “In this particular bill, there are certain safeguards, there’s language that says there have to be attorneys present and involved,” Mason said during questioning. (Though many young artists can’t afford counsel or can’t find good counsel.) “But we also believe that families should have the freedom to enter into different business arrangements.” 

Mason’s view was shared by Rep. Matt Gaetz (R – FL). “If tomorrow I wanted to sell my voice to a robot and let that robot say whatever in the world that it wanted to say, and I wanted to take the money from that sale and go buy a sailboat and never turn on the internet again, why should I not have the right to do that?” he asked.

In addition to Rothman, Mason and Wilson, there was one other witness at the hearing: Christopher Mohr, who serves as president of the Software & Information Industry Association. He spoke little and mostly reiterated that his members wanted the courts to answer key questions around AI. “It’s really important that these cases get thoroughly litigated,” Mohr said.

This answer did not satisfy Rep. Glenn Ivey (D – MD), a former litigator. “It could take years before all of that gets solved and you might have conflicting decisions from different courts in jury trials,” Ivey noted. “What should we be doing to try and fix it now?”