Bill Text: IL HB5594 | 2023-2024 | 103rd General Assembly | Introduced

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Bill Title: Creates the Nurture Originals, Foster Art, and Keep Entertainment Safe Act, which may be referred to as the NO FAKES Act. Creates a civil action for a violation of specified provisions may be brought by (i) an individual, the image, voice, or visual likeness of whom is used in the digital replica that is the subject of the action; or (ii) any other person that owns or controls, including by virtue of an exclusive license, the rights to the image, voice, or visual likeness of this individual; or (iii) in the case involving a sound recording artist, any person that has entered into a contract for the exclusive personal services of the sound recording artist as a sound recording artist. Provides that "digital replica" means a newly created, computer-generated, electronic representation of the image, voice, or visual likeness of an individual that (i) is nearly indistinguishable from the actual image, voice, or visual likeness of that individual; and (ii) is fixed in a sound recording or audiovisual work in which that individual did not actually perform or appear. Requires that the civil action must be brought within 3 years after the date on which the aggrieved party discovered, or with due diligence should have discovered, the violation. Provides that the amounts that may be recovered include: (i) an amount equal to the greater of $5,000 per violation or any damages suffered by the injured party as a result of the violation; (ii) punitive damages in the case of a willful violation in which the injured party has proven that the defendant acted with malice, fraud, or oppression; and (iii) reasonable attorney's fees.

Spectrum: Partisan Bill (Democrat 4-0)

Status: (Introduced) 2024-04-05 - Rule 19(a) / Re-referred to Rules Committee [HB5594 Detail]

Download: Illinois-2023-HB5594-Introduced.html

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103RD GENERAL ASSEMBLY State of Illinois 2023 and 2024 HB5594 Introduced , by Rep. Hoan Huynh SYNOPSIS AS INTRODUCED:
New Act
Creates the Nurture Originals, Foster Art, and Keep Entertainment Safe Act, which may be referred to as the NO FAKES Act. Creates a civil action for a violation of specified provisions may be brought by (i) an individual, the image, voice, or visual likeness of whom is used in the digital replica that is the subject of the action; or (ii) any other person that owns or controls, including by virtue of an exclusive license, the rights to the image, voice, or visual likeness of this individual; or (iii) in the case involving a sound recording artist, any person that has entered into a contract for the exclusive personal services of the sound recording artist as a sound recording artist. Provides that "digital replica" means a newly created, computer-generated, electronic representation of the image, voice, or visual likeness of an individual that (i) is nearly indistinguishable from the actual image, voice, or visual likeness of that individual; and (ii) is fixed in a sound recording or audiovisual work in which that individual did not actually perform or appear. Requires that the civil action must be brought within 3 years after the date on which the aggrieved party discovered, or with due diligence should have discovered, the violation. Provides that the amounts that may be recovered include: (i) an amount equal to the greater of $5,000 per violation or any damages suffered by the injured party as a result of the violation; (ii) punitive damages in the case of a willful violation in which the injured party has proven that the defendant acted with malice, fraud, or oppression; and (iii) reasonable attorney's fees.
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A BILL FOR
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AN ACT concerning civil law.
Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
Section 1. Short title. This Act may be cited as the
Nurture Originals, Foster Art, and Keep Entertainment Safe
Act. This Act may be referred to as the NO FAKES Act.
Section 5. Image, voice, and visual likeness rights.
(a) Definitions. In this Section:
(1) "Digital replica" means a newly created,
computer-generated, electronic representation of the
image, voice, or visual likeness of an individual that:
(A) is nearly indistinguishable from the actual
image, voice, or visual likeness of that individual;
and
(B) is fixed in a sound recording or audiovisual
work in which that individual did not actually perform
or appear.
(2) "Individual" means a human being, living or dead.
(3) "Sound recording artist" means an individual who
creates or performs in sound recordings for economic gain
or for the livelihood of the individual.
(4) "Visual likeness" means the actual visual image or
likeness of an individual, without regard to the means of

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creation, that is readily identifiable as the visual image
or likeness of the individual:
(A) because of a depiction of the face, image,
likeness, or other visually identifiable
characteristic of the individual; or
(B) from information displayed in connection with
the face, image, likeness, or other visually
identifiable characteristic of the individual.
(b) Digital Replication Right.
(1) Subject to the other provisions of this Section,
each individual and, in the case of an individual who is
dead, any executor, heir, assign, or devisee of the
individual has the right to authorize the use of the
image, voice, or visual likeness of the individual in a
digital replica.
(2) The right described in paragraph (1) shall have
the following characteristics:
(A) is a property right; and
(B) descendible and licensable in whole or in
part, by the individual to whom the right applies.
(3) The right shall not expire upon the death of the
individual to whom the right applies, without regard to
whether the right is commercially exploited by that
individual during the lifetime of the individual.
(4) The right shall be exclusive to:
(A) the applicable individual, subject to the

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licensing of those rights, as provided in this
paragraph, during the lifetime of that individual; and
(B) the executors, heirs, assigns, or devisees of
the applicable individual for a period of 70 years
after the death of the individual.
(5) A license described in subparagraph (A) of
subsection (4) shall be valid only if:
(A) the applicable individual was represented by
counsel in the transaction and the assignment
agreement was in writing; or
(B) the licensing of the right covered by the
assignment is governed by a collective bargaining
agreement.
(c) Liability.
(1) Any person 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 (d) for any damages
sustained by the individual or rights holder injured as a
result of that activity.
(2) An activity described in this paragraph is either
of the following:
(A) The production of a digital replica without
consent of the applicable individual or rights holder.
(B) The publication, distribution, or transmission

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of, or otherwise making available to the public, an
unauthorized digital replica, if the person engaging
in that activity has knowledge that the digital
replica was not authorized by the applicable
individual or rights holder.
(3) It shall not be a violation of paragraph (1) if,
regardless of the degree of dramatization:
(A) the applicable digital replica is used as part
of a news, public affairs, or sports broadcast or
report;
(B) the applicable digital replica:
(i) is used part of a documentary, docudrama,
or historical or biographical work; and
(ii) uses a representation of the applicable
individual as that individual;
(C) the applicable digital replica is used for
purposes of comment, criticism, scholarship, satire,
or parody;
(D) the applicable digital replica is used in an
advertisement or commercial announcement for a purpose
described in subparagraph (A), (B), or (C); or
(E) the use of the applicable digital replica is
de minimis or incidental.
(d) Civil action.
(1) A civil action for a violation of subsection (c)
may be brought by:

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(A) an individual, the image, voice, or visual
likeness of whom is used in the digital replica that is
the subject of the action;
(B) any other person that owns or controls,
including by virtue of an exclusive license, the
rights to the image, voice, or visual likeness of the
individual described in subparagraph (A); or
(C) in the case of a digital replica involving a
sound recording artist, any person that has entered
into a contract for the exclusive personal services of
the sound recording artist as a sound recording
artist.
(2) A civil action may not be brought under this
subsection unless the 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) It shall not be a defense in a civil action brought
under this subsection that the defendant:
(A) displayed or otherwise communicated to the
public a disclaimer stating that the applicable
digital replica was unauthorized; or
(B) did not participate in the creation,
development, distribution, or dissemination of the
applicable digital replica.
(4) In any civil action brought under this subsection:

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(A) the person committing a violation of
subsection (c) shall be liable to the injured party in
an amount equal to the greater of:
(i) $5,000 per violation; or
(ii) any damages suffered by the injured party
as a result of the violation;
(B) in the case of a willful violation where the
injured party has proven that the defendant acted with
malice, fraud, or oppression, the court may award to
the injured party punitive damages; and
(C) the court may award to the prevailing party
reasonable attorney's fees.
(e) Preemption. Nothing in this Section may be construed
to limit any right an individual may have under any other law
that provides protection against the unauthorized use of the
image, voice, or visual likeness of the individual.
(f) Rule of construction. 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)).
Section 90. Application. This Section shall apply only to
conduct occurring after the effective date of this Act.
Section 97. Severability. If any provision of this
Section, or the application of a provision of this Section, is

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