Illinois Becomes Second US State to Ban AI Human Replicas

Illinois recently enacted a law making changes to the state’s Right of Publicity Act to create a private right of action to sue those creating or distributing unauthorized copies of a person’s identity using artificial intelligence (AI).

Under the law,

"Identity" means any attribute of an individual that serves to identify that individual to an ordinary, reasonable viewer or listener, including but not limited to (i) name, (ii) signature, (iii) photograph, (iv) image, (v) likeness, or (vi) voice.

The Act defines AI to mean

a machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.

AI under the Act also includes Generative AI (“GAI”), such as ChatGPT, which can generate “new” images and music (among other things) based on user prompts.

The new Illinois law prohibits the distribution of digital replicas that a person knows are unauthorized. As with the federal Digital Millennium Copyright Act (DMCA), internet service providers that are merely a conduit for prohibited material but don’t have actual knowledge that the material is on their system aren’t liable for violations of the law.

Under the new law,

"Digital replica" means a newly created, electronic representation of the voice, image, or likeness of an actual individual created using a computer, algorithm, software, tool, artificial intelligence, or other technology that is fixed in a sound recording or audiovisual work in which that individual did not perform or appear, and which a reasonable person would believe is that particular individual's voice, image, or likeness being imitated.

As in the previous version of the law, written consent is required for a person’s image to be used for commercial purposes during their life and for 50 years after their death.

"Commercial purpose" means

the public use or holding out of an individual's identity (i) on or in connection with the offering for sale or sale of a product, merchandise, goods, or services; (ii) for purposes of advertising or promoting products, merchandise, goods, or services; or (iii) for the purpose of fundraising.

Since the rights survive a person’s death,

The rights under this Act are property rights that are freely transferable in whole or in part to any person either by written transfer, including but not limited to wills and trusts, or by intestate succession only to an individual's spouse, parents, children, and grandchildren…

The new law adds that the rights of a recording artist can also be enforced by the artist’s recording label.

The law doesn’t apply to the use of an individual's identity in an attempt to portray, describe, or impersonate that individual in a live performance, a single and original work of fine art, play, book, article, musical work, film, radio, television, or other audio, visual, or audio-visual work, provided that the performance, work, play, book, article, or film does not constitute in and of itself a commercial advertisement for a product, merchandise, goods, or services…

As the National Law Review reported, Illinois also recently

expanded the state’s Civil Remedies for Nonconsensual Dissemination of Private Sexual Images Act to permit persons about whom “digitally altered sexual images” (a form of “deepfake”) are published without consent to sue for damages and/or seek expanded injunctive relief.

Previously, Tennessee passed the first US law against the use of artificial intelligence (AI) to copy a person’s voice. The law is called the Ensuring Likeness, Voice and Image Security (ELVIS) Act and took effect in July 2024.

The state’s prior right of publicity law only protected a person’s name, image, and likeness. The new Act adds protection for a person’s voice.

Under the Act,

"Voice" means a sound in a medium that is readily identifiable and attributable to a particular individual, regardless of whether the sound contains the actual voice or a simulation of the voice of the individual…

Also,

Any person who knowingly uses or infringes upon the use of an individual's name, photograph, voice, or likeness in any medium, in any manner directed to any person other than such individual, for purposes of advertising products, merchandise, goods, or services, or for purposes of fundraising, solicitation of donations, purchases of products, merchandise, goods, or services, without such individual's prior consent, or, in the case of a minor, the prior consent of such minor's parent or legal guardian, or in the case of a deceased individual, the consent of the executor or administrator, heirs, or devisees of such deceased individual, is liable to a civil action.

The new Act also applies to AI tools that can be used to violate the Act:

A person is liable to a civil action if the person distributes, transmits, or otherwise makes available an algorithm, software, tool, or other technology, service, or device, the primary purpose or function of such algorithm, software, tool, or other technology, service, or device is the production of a particular, identifiable individual's photograph, voice, or likeness, with knowledge that distributing, transmitting, or otherwise making available the photograph, voice, or likeness was not authorized by the individual … or in the case of a deceased individual, the executor or administrator, heirs, or devisees of such deceased individual.

As we wrote about in a recent blog,

The US Copyright Office has issued a report recommending the creation of a new federal law that would create a kind of property right in a person’s digital replica, including their face and voice.

Even though some existing state and federal laws address this issue, there are gaps in their coverage, as the Copyright Office Report notes:

State laws are both inconsistent and insufficient in various respects. As described above, some states currently do not provide rights of publicity and privacy, while others only protect certain categories of individuals. Multiple states require a showing that the individual’s identity has commercial value. Not all states’ laws protect an individual’s voice; those that do may limit protection to distinct and well-known voices, to voices with commercial value, or to the use of actual voices without consent (rather than a digital replica).