The Entertainment Software Association (ESA) has argued against SAG-AFTRA’s Nurture Originals, Foster Art, and Keep Entertainment Safe (No Fakes) act, arguing that there isn’t a clear distinction between harmful deepfakes and legitimate digital replicas of people.
Stanley Pierre-Louis, president and CEO of the ESA, voiced his concerns in a letter addressed to the US Senate Judiciary Committee, specifically chairman Chuck Grassley and ranking member Dick Durbin.
According to Pierre-Louis, as it’s currently drafted, the No Fakes act “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.”
The main gripe is centered around the act’s definition of “digital replica,” which could lead to lawsuits by people who may “even by coincidence” resemble a game character.
Pierre-Louis, then, argues that while the industry would likely prevail against such claims in court, the time and expense of litigating such suits would be “economically devastating.”
The letter also argues that the act creates liability for certain tools and services used to create said replicas.
“We are concerned that the bill, as drafted, 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,” Pierre-Louis says.
The letter concludes by saying that these aren’t the only problems with the bill, and that ESA has offered “common-sense” solutions to narrow the legislation in a way that addresses legitimate harms. “Unfortunately, some proponents of the bill have resisted [accommodations to] our unique concerns,” the letter reads.
The bill was originally introduced in 2024, but it didn’t pass before the US elections. It was then reintroduced in the senate in April of last year, where it received bi-partisan support. During a press conference at the time, the union said that, if passed, the bill would establish “a federal right in voice and likeness to protect against unauthorized use of digital replicas.”
National executive director and chief negotiator Duncan Crabtree-Ireland explained that the bill would allow SAG-AFTRA members and workers who rely on their face and voice for their livelihood to demand that platforms “remove illegal voice and image clones.” It would also grant a legal path towards seeking damages from “those who intentionally cause harm.”
The main exceptions to the bill, however, include a digital replica that is used in “bona fide commentary, criticism, scholarship, satire, or parody.” The goal of the act, then, would be to provide “one strong, consent-based framework for digital replicas uses in expressive works nationwide.”
In May of last year, SAG-AFTRA publicly released new proposed terms in response to an offer made by video game companies on April 30. While the terms were related to protections around generative AI practices, replicas were also in conversation.
For example, video game studios were pursuing a model where they could use a performer’s replica for a franchise they’ve worked on before without special permission, but willing to pay minimum scale. The union held that companies should always have to give the worker notice and get their explicit consent first.
The union also rejected unlimited digital replica use buyouts “without a strong, clear justification,” arguing that rather than a convenience, whenever buyouts are introduced, they offer a purposeful discount to employers.
As announced by SAG-AFTRA earlier this week, the Senate Judiciary Committee has placed the No Fakes bill on their agenda for June 11.
“Here’s the hard truth: Deepfakes can ruin lives,” reads the open letter. “It doesn’t matter if you’re a public figure or a high school student being exploited by predators on the internet. The passage of the No Fakes Act would put the necessary protections in place to ensure people have the power to say, ‘Not my face. Not my voice. Not without my consent,’ and the power to deliver real consequences to those who violate their rights.”