| 11 | | - | directory of certain post-mortem digital replication rights and a directory of designated6 |
|---|
| 12 | | - | agents; to authorize the Secretary of State to make interpretations and resolve ambiguities7 |
|---|
| 13 | | - | in carrying out provisions of this article; to provide for rules and regulations; to provide for8 |
|---|
| 14 | | - | civil liability for the unauthorized use of a digital replica; to provide for penalties; to bar9 |
|---|
| 15 | | - | liability arising from retroactive application of this Act; to provide for definitions; to provide10 |
|---|
| 16 | | - | for an effective date; to repeal conflicting laws; and for other purposes.11 |
|---|
| 17 | | - | BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:12 |
|---|
| 18 | | - | SECTION 1.13 |
|---|
| 19 | | - | This Act shall be known and may be cited as the "Nurture Originals, Foster Art, and Keep14 |
|---|
| 20 | | - | Entertainment Safe Act of 2025" or the "NO FAKES Act of 2025."15 |
|---|
| 21 | | - | H. B. 566 (SUB) |
|---|
| 22 | | - | - 1 - 25 LC 59 0126S |
|---|
| 23 | | - | SECTION 2.16 |
|---|
| 24 | | - | Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating to selling and other17 |
|---|
| 25 | | - | trade practices, is amended by enacting a new article to read as follows:18 |
|---|
| 26 | | - | "ARTICLE 3719 |
|---|
| 27 | | - | 10-1-950.20 |
|---|
| 28 | | - | As used in this article, the term:21 |
|---|
| 29 | | - | (1) 'Digital replica' means a newly created, computer generated, highly realistic22 |
|---|
| 30 | | - | electronic representation that is readily identifiable as the voice or visual likeness of an23 |
|---|
| 31 | | - | individual that:24 |
|---|
| 32 | | - | (A) Is embodied in a sound recording, image, audiovisual work, including an25 |
|---|
| 33 | | - | audiovisual work that does not have any accompanying sounds, or transmission:26 |
|---|
| 34 | | - | (i) In which the actual individual did not actually perform or appear; or27 |
|---|
| 35 | | - | (ii) That is a version of a sound recording, image, or audiovisual work, in which the28 |
|---|
| 36 | | - | actual individual did perform or appear, where the fundamental character of the29 |
|---|
| 37 | | - | performance or appearance has been materially altered; and30 |
|---|
| 38 | | - | (B) Does not include the electronic reproduction, use of a sample of one sound31 |
|---|
| 39 | | - | recording or audiovisual work into another, remixing, mastering, or digital remastering32 |
|---|
| 40 | | - | of a sound recording or audiovisual work authorized by the copyright holder.33 |
|---|
| 41 | | - | (2) 'Individual' means a human being, living or dead.34 |
|---|
| 42 | | - | (3) 'Online service' means:35 |
|---|
| 43 | | - | (A)(i) Any public website, online application, mobile application, or virtual reality36 |
|---|
| 44 | | - | environment that predominantly provides a community forum for user generated37 |
|---|
| 45 | | - | content, such as sharing videos, images, games, audio files, or other material; or38 |
|---|
| 46 | | - | (ii) A digital music provider, as defined in 17 U.S.C. Section 115(e); and39 |
|---|
| 47 | | - | H. B. 566 (SUB) |
|---|
| 48 | | - | - 2 - 25 LC 59 0126S |
|---|
| 49 | | - | (B) May include a social media service, social network, or application store; provided,40 |
|---|
| 50 | | - | however, that such term does not include a service by wire or radio that provides the41 |
|---|
| 51 | | - | capability to transmit data to and receive data from all, or substantially all, internet42 |
|---|
| 52 | | - | endpoints, including any capabilities that are incidental to enabling the operation of the43 |
|---|
| 53 | | - | communications service of a provider of online services or network access, or the44 |
|---|
| 54 | | - | operator of facilities for such service.45 |
|---|
| 55 | | - | (4) 'Production' means the creation of a digital replica.46 |
|---|
| 56 | | - | (5) 'Right holder' means the individual whose voice or visual likeness is at issue with47 |
|---|
| 57 | | - | respect to a digital replica and any other person that has acquired, through a license,48 |
|---|
| 58 | | - | inheritance, or otherwise, the right to authorize the use of such voice or visual likeness49 |
|---|
| 59 | | - | in a digital replica.50 |
|---|
| 60 | | - | (6) 'Sound recording artist' means an individual who creates or performs in sound51 |
|---|
| 61 | | - | recordings for economic gain or for the livelihood of the individual.52 |
|---|
| 62 | | - | 10-1-951.53 |
|---|
| 63 | | - | (a) Subject to the other provisions of this Code section, each individual or right holder54 |
|---|
| 64 | | - | shall have the right to authorize the use of the voice or visual likeness of such individual55 |
|---|
| 65 | | - | in a digital replica.56 |
|---|
| 66 | | - | (b) The right described in subsection (a) of this Code section shall have the following57 |
|---|
| 67 | | - | characteristics:58 |
|---|
| 68 | | - | (1) The right is:59 |
|---|
| 69 | | - | (A) A property right;60 |
|---|
| 70 | | - | (B) Not assignable during the life of the individual; and61 |
|---|
| 71 | | - | (C) Licensable, in whole or in part, exclusively or non-exclusively, by the right holder;62 |
|---|
| 72 | | - | (2) The right shall not expire upon the death of the individual, without regard to whether63 |
|---|
| 73 | | - | such right is commercially exploited by the individual during the individual's lifetime;64 |
|---|
| 74 | | - | (3) Upon the death of the individual:65 |
|---|
| 75 | | - | H. B. 566 (SUB) |
|---|
| 76 | | - | - 3 - 25 LC 59 0126S |
|---|
| 77 | | - | (A) The right is transferable, licensable, in whole or in part, by the executors, heirs,66 |
|---|
| 78 | | - | assigns, licensees, or devisees of the individual; and67 |
|---|
| 79 | | - | (B) Ownership of the right may be:68 |
|---|
| 80 | | - | (i) Transferred, in whole or in part, by any means of conveyance or by operation of69 |
|---|
| 81 | | - | law; and70 |
|---|
| 82 | | - | (ii) Bequeathed by will or passed as personal property by the applicable laws of71 |
|---|
| 83 | | - | intestate succession;72 |
|---|
| 84 | | - | (4) The right shall be exclusive to:73 |
|---|
| 85 | | - | (A) The individual, subject to the licensing of the right during the lifetime of such74 |
|---|
| 86 | | - | individual under subsection (a) of Code Section 10-1-952; and75 |
|---|
| 87 | | - | (B) The right holder:76 |
|---|
| 88 | | - | (i) For a period of ten years after the death of the individual; and77 |
|---|
| 89 | | - | (ii) If the right holder demonstrates active and authorized public use of the voice or78 |
|---|
| 90 | | - | visual likeness of the individual during the two-year period preceding the expiration79 |
|---|
| 91 | | - | of the ten-year period described in division (i) of this paragraph, for an additional80 |
|---|
| 92 | | - | five-year period, subject to renewal for additional five-year periods, provided that the81 |
|---|
| 93 | | - | right holder can demonstrate authorized public use of the voice or visual likeness of82 |
|---|
| 94 | | - | the individual during the two-year period preceding the expiration of each additional83 |
|---|
| 95 | | - | five-year period; and84 |
|---|
| 96 | | - | (5) The right shall terminate on the date that is the earlier of:85 |
|---|
| 97 | | - | (A) The date on which the ten-year period or five-year period described in86 |
|---|
| 98 | | - | division (b)(4)(B)(ii) of this Code section terminates without renewal; or87 |
|---|
| 99 | | - | (B) The date that is 70 years after the death of the individual.88 |
|---|
| 100 | | - | 10-1-952.89 |
|---|
| 101 | | - | (a) A license described in subparagraph (b)(4)(A) of Code Section 10-1-951:90 |
|---|
| 102 | | - | H. B. 566 (SUB) |
|---|
| 103 | | - | - 4 - 25 LC 59 0126S |
|---|
| 104 | | - | (1) While the individual is living, is valid only to the extent that the license duration does91 |
|---|
| 105 | | - | not exceed ten years; and92 |
|---|
| 106 | | - | (2) Shall be valid only if the license agreement:93 |
|---|
| 107 | | - | (i) Is in writing and signed by the individual or an authorized representative of the94 |
|---|
| 108 | | - | individual; and95 |
|---|
| 109 | | - | (ii) Includes a reasonably specific description of the intended uses of the applicable96 |
|---|
| 110 | | - | digital replica.97 |
|---|
| 111 | | - | (b) A license as described in subparagraph (b)(1)(C) of Code Section 10-1-951 involving98 |
|---|
| 112 | | - | a living individual who is younger than 18 years of age:99 |
|---|
| 113 | | - | (1) Is valid only to the extent that the license duration does not exceed five years, but in100 |
|---|
| 114 | | - | any case terminates when the individual reaches 18 years of age;101 |
|---|
| 115 | | - | (2) Shall be valid only if the license agreement:102 |
|---|
| 116 | | - | (A) Is in writing and signed by the individual or an authorized representative of the103 |
|---|
| 117 | | - | individual; and104 |
|---|
| 118 | | - | (B) Includes a reasonably specific description of the intended uses of the digital105 |
|---|
| 119 | | - | replica; and106 |
|---|
| 120 | | - | (3) The license is approved by a court in accordance with the law of this state.107 |
|---|
| 121 | | - | (c) The provisions of subsections (a) and (b) of this Code section shall not apply if the108 |
|---|
| 122 | | - | license is governed by a collective bargaining agreement that addresses digital replicas.109 |
|---|
| 123 | | - | (d) The provisions of subsections (a) and (b) of this Code section shall not affect terms and110 |
|---|
| 124 | | - | conditions of a license or related contract other than those described in this Code section,111 |
|---|
| 125 | | - | and the expiration of such license does not affect the remainder of the license or related112 |
|---|
| 126 | | - | contract.113 |
|---|
| 127 | | - | H. B. 566 (SUB) |
|---|
| 128 | | - | - 5 - 25 LC 59 0126S |
|---|
| 129 | | - | 10-1-953.114 |
|---|
| 130 | | - | (a) A post-mortem transfer or license as provided in subparagraph (b)(3)(A) of Code115 |
|---|
| 131 | | - | Section 10-1-951 shall be valid only if the transfer agreement or license agreement is in116 |
|---|
| 132 | | - | writing and signed by the right holder or an authorized representative of the right holder.117 |
|---|
| 133 | | - | (b) The renewal of a post-mortem right under division (b)(4)(B)(ii) of Code Section118 |
|---|
| 134 | | - | 10-1-951 shall be effective if, during the applicable two-year renewal period specified in119 |
|---|
| 135 | | - | said division, the right holder files a notice with the Secretary of State which shall include:120 |
|---|
| 136 | | - | (1) The name of the deceased individual;121 |
|---|
| 137 | | - | (2) A statement, under penalty of perjury, that the right holder has engaged in active and122 |
|---|
| 138 | | - | authorized public use of the voice or visual likeness during the applicable two-year123 |
|---|
| 139 | | - | period;124 |
|---|
| 140 | | - | (3) The identity of and contact information for the right holder; and125 |
|---|
| 141 | | - | (4) Such other information as the Secretary of State may prescribe by regulation.126 |
|---|
| 142 | | - | (c) The Secretary of State shall maintain a current directory of post-mortem digital127 |
|---|
| 143 | | - | replication rights registered under this Code section. Such directory may include voluntary128 |
|---|
| 144 | | - | registrations of the post-mortem right provided in division (b)(4)(b)(i) of Code Section129 |
|---|
| 145 | | - | 10-1-951. Such directory shall be posted on the appropriate public website and available130 |
|---|
| 146 | | - | to the public for inspection. The Secretary of State may require payment of a reasonable131 |
|---|
| 147 | | - | filing fee by the registrant, which may take into consideration the costs of maintaining such132 |
|---|
| 148 | | - | directory.133 |
|---|
| 149 | | - | (d) The right holder may voluntarily register the post-mortem right under division134 |
|---|
| 150 | | - | (b)(4)(B)(i) of Code Section 10-1-951 by filing a notice with the Secretary of State that135 |
|---|
| 151 | | - | complies with such requirements regarding form, content, and filing procedures as the136 |
|---|
| 152 | | - | Secretary of State may prescribe by regulation.137 |
|---|
| 153 | | - | (e) The Secretary of State may make such interpretations and resolve such ambiguities as138 |
|---|
| 154 | | - | may be appropriate to carry out this article.139 |
|---|
| 155 | | - | H. B. 566 (SUB) |
|---|
| 156 | | - | - 6 - 25 LC 59 0126S |
|---|
| 157 | | - | (f) The Secretary of State shall promulgate rules and regulations necessary to implement140 |
|---|
| 158 | | - | and administer the provisions of this article.141 |
|---|
| 159 | | - | 10-1-954.142 |
|---|
| 160 | | - | A digital replica that is embodied in a sound recording, image, audiovisual work, including143 |
|---|
| 161 | | - | an audiovisual work that does not have any accompanying sounds, or transmission, and the144 |
|---|
| 162 | | - | use of which is authorized pursuant to the terms of a license, may continue to be utilized145 |
|---|
| 163 | | - | in a manner consistent with the terms of that license after the expiration or termination of146 |
|---|
| 164 | | - | the license.147 |
|---|
| 165 | | - | 10-1-955.148 |
|---|
| 166 | | - | (a) Any person that engages in an activity provided in subsection (b) of this Code section149 |
|---|
| 167 | | - | shall be liable in a civil action brought under subsection (e) of this Code section.150 |
|---|
| 168 | | - | (b) The following activities shall be prohibited pursuant to this article:151 |
|---|
| 169 | | - | (1) The production of a digital replica without consent of the applicable right holder; or152 |
|---|
| 170 | | - | (2) The publication, reproduction, display, distribution, transmission of, or otherwise153 |
|---|
| 171 | | - | making available to the public a digital replica without consent of the applicable right154 |
|---|
| 172 | | - | holder.155 |
|---|
| 173 | | - | (c) To incur liability under this Code section, a person engaging in an activity shall have156 |
|---|
| 174 | | - | actual knowledge, which could be obtained through a notification that satisfies157 |
|---|
| 175 | | - | subsection (k) of this Code section, or shall willfully avoid having such knowledge, that:158 |
|---|
| 176 | | - | (1) The applicable material is a digital replica; and159 |
|---|
| 177 | | - | (2) The digital replica was not authorized by the applicable right holder.160 |
|---|
| 178 | | - | (d) It shall not be a violation of subsection (a) of this Code section if:161 |
|---|
| 179 | | - | (1) The applicable digital replica is produced or used in a bona fide news, public affairs,162 |
|---|
| 180 | | - | or sports broadcast or account, provided that the digital replica is the subject of, or is163 |
|---|
| 181 | | - | materially relevant to, the subject of such broadcast or account; or164 |
|---|
| 182 | | - | H. B. 566 (SUB) |
|---|
| 183 | | - | - 7 - 25 LC 59 0126S |
|---|
| 184 | | - | (2) The applicable digital replica is a representation of the applicable individual in a165 |
|---|
| 185 | | - | documentary or in a historical or biographical manner, including some degree of166 |
|---|
| 186 | | - | fictionalization, unless:167 |
|---|
| 187 | | - | (A) The production or use of that digital replica creates the false impression that the168 |
|---|
| 188 | | - | work is an authentic sound recording, image, transmission, or audiovisual work in169 |
|---|
| 189 | | - | which the individual participated; or170 |
|---|
| 190 | | - | (B) The digital replica is embodied in a musical sound recording that is synchronized171 |
|---|
| 191 | | - | to accompany a motion picture or other audiovisual work, except to the extent that the172 |
|---|
| 192 | | - | use of that digital replica is protected by the First Amendment to the Constitution of the173 |
|---|
| 193 | | - | United States;174 |
|---|
| 194 | | - | (3) The applicable digital replica is produced or used consistent with the public interest175 |
|---|
| 195 | | - | in bona fide commentary, criticism, scholarship, satire, or parody;176 |
|---|
| 196 | | - | (4) The use of the applicable digital replica is fleeting or negligible; or177 |
|---|
| 197 | | - | (5) The applicable digital replica is used in an advertisement or commercial178 |
|---|
| 198 | | - | announcement for any purpose described in paragraphs (1) through (4) of this subsection179 |
|---|
| 199 | | - | and the applicable digital replica is relevant to the subject of the work so advertised or180 |
|---|
| 200 | | - | announced.181 |
|---|
| 201 | | - | (e) The exception provided in subsection (d) of this Code section shall not apply where the182 |
|---|
| 202 | | - | applicable digital replica is used to depict sexually explicit conduct, as such term is set183 |
|---|
| 203 | | - | forth in Code Section 16-12-100.184 |
|---|
| 204 | | - | (f) No person shall be secondarily liable for a violation of this Code section for185 |
|---|
| 205 | | - | manufacturing, importing, offering to the public, providing, or otherwise distributing a186 |
|---|
| 206 | | - | product or service unless the product or service:187 |
|---|
| 207 | | - | (1) Is primarily designed to produce one or more unauthorized digital replicas;188 |
|---|
| 208 | | - | (2) Has only limited commercially significant purpose or use other than to produce an189 |
|---|
| 209 | | - | unauthorized digital replica; or190 |
|---|
| 210 | | - | H. B. 566 (SUB) |
|---|
| 211 | | - | - 8 - 25 LC 59 0126S |
|---|
| 212 | | - | (3) Is marketed, advertised, or otherwise promoted by that person or another acting in191 |
|---|
| 213 | | - | concert with that person with that person's knowledge for use in producing an192 |
|---|
| 214 | | - | unauthorized digital replica.193 |
|---|
| 215 | | - | (g) An online service shall not be liable for violating the right described in Code Section194 |
|---|
| 216 | | - | 10-1-951 by referring or linking a user to an unauthorized digital replica, or by carrying out195 |
|---|
| 217 | | - | an activity described in subsection (b) of this Code section, if, upon receiving a notification196 |
|---|
| 218 | | - | as provided in subsection (c) of this Code section, the online service removes or disables197 |
|---|
| 219 | | - | access to the material that is claimed to be an unauthorized digital replica as soon as is198 |
|---|
| 220 | | - | technically and practically feasible for such online service.199 |
|---|
| 221 | | - | (h) An online service shall not be liable for violating the right described in Code Section200 |
|---|
| 222 | | - | 10-1-951 by storing third-party provided material that resides on a system or network201 |
|---|
| 223 | | - | controlled or operated by or for the online service if, upon receiving a notification that202 |
|---|
| 224 | | - | satisfies subsection (c) of this Code section, the online service:203 |
|---|
| 225 | | - | (1) Removes, or disables access to, all instances of the material, or an activity using the204 |
|---|
| 226 | | - | material, that is claimed to be an unauthorized digital replica, as soon as is technically205 |
|---|
| 227 | | - | and practically feasible for such online service; and206 |
|---|
| 228 | | - | (2) Having done so, takes reasonable steps to promptly notify the third party which207 |
|---|
| 229 | | - | provided the material that the online service has removed or disabled access to the208 |
|---|
| 230 | | - | material.209 |
|---|
| 231 | | - | (i) The limitations on liability established under this Code section shall apply to an online210 |
|---|
| 232 | | - | service only if the online service has designated an agent to receive notifications under211 |
|---|
| 233 | | - | subsection (c) of this Code section by making available through the online service,212 |
|---|
| 234 | | - | including on the public website of the online service in a location accessible to the public,213 |
|---|
| 235 | | - | and by providing to the Secretary of State, substantially the following information:214 |
|---|
| 236 | | - | (1) The name, address, telephone number, and electronic mail address of the agent; and215 |
|---|
| 237 | | - | (2) Other contact information that the Secretary of State may determine appropriate.216 |
|---|
| 238 | | - | H. B. 566 (SUB) |
|---|
| 239 | | - | - 9 - 25 LC 59 0126S |
|---|
| 240 | | - | (j) The Secretary of State shall maintain a current directory of designated agents for the217 |
|---|
| 241 | | - | purposes of this Code Section. The directory of designated agents shall be available to the218 |
|---|
| 242 | | - | public for inspection, including through the internet. The Secretary of State may require219 |
|---|
| 243 | | - | payment of a reasonable filing fee by the registrant, which may take into consideration the220 |
|---|
| 244 | | - | costs of maintaining the directory of designated agents.221 |
|---|
| 245 | | - | (k) To be effective under this Code section, a notification of a claimed violation of the222 |
|---|
| 246 | | - | right described in Code Section 10-1-951 shall be a written communication provided to the223 |
|---|
| 247 | | - | designated agent of an online service that includes the following:224 |
|---|
| 248 | | - | (1) A physical or electronic signature of the right holder, a person authorized to act on225 |
|---|
| 249 | | - | behalf of the right holder, or an eligible plaintiff under subsection (n) of this Code226 |
|---|
| 250 | | - | section;227 |
|---|
| 251 | | - | (2) Identification of the individual, the voice or visual likeness of whom is being used228 |
|---|
| 252 | | - | in an unauthorized digital replica;229 |
|---|
| 253 | | - | (3) Identification of the material containing an unauthorized digital replica, including230 |
|---|
| 254 | | - | information sufficient to allow the online service to locate the allegedly unauthorized231 |
|---|
| 255 | | - | digital replica;232 |
|---|
| 256 | | - | (4) Information reasonably sufficient to permit the online service to contact the notifying233 |
|---|
| 257 | | - | party, such as an address, telephone number, and electronic mail address;234 |
|---|
| 258 | | - | (5) A statement that the notifying party believes in good faith that the material is an235 |
|---|
| 259 | | - | unauthorized use of a digital replica;236 |
|---|
| 260 | | - | (6) If not the right holder or an eligible plaintiff under subsection (n) of this Code237 |
|---|
| 261 | | - | section, a statement that the notifying party has the authority to act on behalf of the right238 |
|---|
| 262 | | - | holder;239 |
|---|
| 263 | | - | (7) For the purposes of subsection (g) of this Code section, information reasonably240 |
|---|
| 264 | | - | sufficient to:241 |
|---|
| 265 | | - | H. B. 566 (SUB) |
|---|
| 266 | | - | - 10 - 25 LC 59 0126S |
|---|
| 267 | | - | (A) Identify the reference or link to the material or activity claimed to be an242 |
|---|
| 268 | | - | unauthorized digital replica that is to be removed or to which access is to be disabled;243 |
|---|
| 269 | | - | and244 |
|---|
| 270 | | - | (B) Permit the online service to locate the reference or link described in245 |
|---|
| 271 | | - | subparagraph (A) of this paragraph.246 |
|---|
| 272 | | - | (l) It shall be unlawful to knowingly materially misrepresent under subsection (k) of this247 |
|---|
| 273 | | - | Code section:248 |
|---|
| 274 | | - | (1) That the material requested to be removed is an unauthorized digital replica;249 |
|---|
| 275 | | - | (2) That a person has the authority to act on behalf of the right holder; or250 |
|---|
| 276 | | - | (3) That a digital replica is not authorized by the right holder or by other law.251 |
|---|
| 277 | | - | (m) Any person that violates subsection (l) of this Code section shall be liable for an252 |
|---|
| 278 | | - | amount equal to the greater of $5,000.00 or any actual damages, including costs and253 |
|---|
| 279 | | - | attorney's fees, incurred by the alleged violator, as well as by any online service injured by254 |
|---|
| 280 | | - | the reliance of the online service on the misrepresentation in removing or disabling access255 |
|---|
| 281 | | - | to the material or activity claimed to be an unauthorized digital replica.256 |
|---|
| 282 | | - | (n) A civil action for a violation of this Code section may be brought by:257 |
|---|
| 283 | | - | (1) A right holder;258 |
|---|
| 284 | | - | (2) If the individual is younger than 18 years of age, a parent or guardian of the259 |
|---|
| 285 | | - | individual;260 |
|---|
| 286 | | - | (3) Any other person that controls, including by virtue of a license, the right to authorize261 |
|---|
| 287 | | - | the use of the voice or visual likeness of the right holder;262 |
|---|
| 288 | | - | (4) Any other person that owns or controls the right to authorize the use of the voice or263 |
|---|
| 289 | | - | visual likeness of a deceased individual; or264 |
|---|
| 290 | | - | (5) In the case of a digital replica involving a sound recording artist, any person that has,265 |
|---|
| 291 | | - | directly or indirectly, entered into:266 |
|---|
| 292 | | - | (A) A contract for the exclusive personal services of the sound recording artist as a267 |
|---|
| 293 | | - | sound recording artist; or268 |
|---|
| 294 | | - | H. B. 566 (SUB) |
|---|
| 295 | | - | - 11 - 25 LC 59 0126S |
|---|
| 296 | | - | (B) An exclusive license to distribute or transmit one or more works that capture the269 |
|---|
| 297 | | - | audio performance of the sound recording artist.270 |
|---|
| 298 | | - | (o) A civil action may not be brought under this Code section unless the action is271 |
|---|
| 299 | | - | commenced not later than three years after the date on which the party seeking to bring the272 |
|---|
| 300 | | - | civil action discovered, or with due diligence should have discovered, the applicable273 |
|---|
| 301 | | - | violation.274 |
|---|
| 302 | | - | (p) It shall not be a defense in a civil action brought under this Code section that the275 |
|---|
| 303 | | - | defendant displayed or otherwise communicated to the public a disclaimer stating that the276 |
|---|
| 304 | | - | applicable digital replica was unauthorized or disclosing that the digital replica was277 |
|---|
| 305 | | - | generated through the use of artificial intelligence or other technology.278 |
|---|
| 306 | | - | (q) In any civil action brought under this Code section:279 |
|---|
| 307 | | - | (1) An individual or entity that engages in an activity described in subsection (b) of Code280 |
|---|
| 308 | | - | Section 10-1-955 shall be liable to the injured party in an amount equal to the greater of:281 |
|---|
| 309 | | - | (A)(i) In the case of an individual, $5,000.00 per work embodying the applicable282 |
|---|
| 310 | | - | unauthorized digital replica;283 |
|---|
| 311 | | - | (ii) In the case of an entity that is an online service, $5,000.00 per violation; and284 |
|---|
| 312 | | - | (iii) In the case of an entity that is not an online service, $25,000.00 per work285 |
|---|
| 313 | | - | embodying the applicable unauthorized digital replica; or286 |
|---|
| 314 | | - | (B) Any actual damages suffered by the injured party as a result of the activity, plus287 |
|---|
| 315 | | - | any profits from the unauthorized use that are attributable to such use and are not taken288 |
|---|
| 316 | | - | into account in computing the actual damages.289 |
|---|
| 317 | | - | (2) The plaintiff may seek injunctive or other equitable relief;290 |
|---|
| 318 | | - | (3) In the case of willful activity in which the injured party has proven that the defendant291 |
|---|
| 319 | | - | acted with malice, fraud, knowledge, or willful avoidance of knowledge that the conduct292 |
|---|
| 320 | | - | violated the law, the court may award to the injured party punitive damages;293 |
|---|
| 321 | | - | H. B. 566 (SUB) |
|---|
| 322 | | - | - 12 - 25 LC 59 0126S |
|---|
| 323 | | - | (4) If the party bringing the action prevails, the court shall award reasonable attorney's294 |
|---|
| 324 | | - | fees. If the party defending the action prevails, the court shall award reasonable295 |
|---|
| 325 | | - | attorney's fees if the court determines that the action was not brought in good faith;296 |
|---|
| 326 | | - | (5) For purposes of this subsection, the term 'violation' means each display, copy,297 |
|---|
| 327 | | - | transmission, and each instance of the unauthorized digital replica being otherwise made298 |
|---|
| 328 | | - | available on the online service, unless the online service has taken reasonable steps to299 |
|---|
| 329 | | - | remove, or disable access to, the unauthorized digital replica as soon as is technically and300 |
|---|
| 330 | | - | practically feasible for the online service upon acquiring knowledge as set forth in301 |
|---|
| 331 | | - | subsection (c)(3) of Code Section 10-1-955;302 |
|---|
| 332 | | - | (6) An online service that has an objectively reasonable belief that material that is303 |
|---|
| 333 | | - | claimed to be an unauthorized digital replica does not qualify as a digital replica under304 |
|---|
| 334 | | - | paragraph (1) of Code Section 10-1-950 shall not be liable for statutory or actual damages305 |
|---|
| 335 | | - | exceeding $1 million regardless of whether the material is ultimately determined to be306 |
|---|
| 336 | | - | an unauthorized digital replica; and307 |
|---|
| 337 | | - | (7) In the event that the third party that provided the material that the online service has308 |
|---|
| 338 | | - | removed or to which the online service has disabled access files a lawsuit against the309 |
|---|
| 339 | | - | sender of a notice under subsection (k) of this Code section claiming that such notice was310 |
|---|
| 340 | | - | false or deceptive as provided in subsection (l) of this Code section, the online service311 |
|---|
| 341 | | - | may, provided that the lawsuit was filed not later than 14 days after the user receives312 |
|---|
| 342 | | - | notice that the online service has removed or disabled access to the material, restore the313 |
|---|
| 343 | | - | removed material to its network for access by members of the public without monetary314 |
|---|
| 344 | | - | liability therefor to either the notice sender or the third party that provided the material315 |
|---|
| 345 | | - | that the online service had removed or disabled access.316 |
|---|
| 346 | | - | 10-1-956.317 |
|---|
| 347 | | - | (a) Nothing in this article shall be construed to abrogate causes of action under the318 |
|---|
| 348 | | - | common law.319 |
|---|
| 349 | | - | H. B. 566 (SUB) |
|---|
| 350 | | - | - 13 - 25 LC 59 0126S |
|---|
| 351 | | - | (b) Liability under this article shall apply only to:320 |
|---|
| 352 | | - | (1) Conduct occurring after the date of enactment of this Act; and321 |
|---|
| 353 | | - | (2) In the case of conduct covered by a license or contract, a license or contract that is322 |
|---|
| 354 | | - | executed after the date of enactment of this Act.323 |
|---|
| 355 | | - | (c) The right granted under subsection (b) of Code Section 10-1-951:324 |
|---|
| 356 | | - | (1) Shall apply to any individual, regardless of whether the individual dies before or after325 |
|---|
| 357 | | - | the date of enactment of this article; and326 |
|---|
| 358 | | - | (2) In the case of a right holder who has died before the date of enactment of this article,327 |
|---|
| 359 | | - | shall vest in the executors, heirs, assigns, or devisees of the right holder."328 |
|---|
| 360 | | - | SECTION 3.329 |
|---|
| 361 | | - | This Act shall become effective 180 days after its approval by the Governor or 180 days after330 |
|---|
| 362 | | - | its becoming law without such approval.331 |
|---|
| 363 | | - | SECTION 4.332 |
|---|
| 364 | | - | All laws and parts of laws in conflict with this Act are repealed.333 |
|---|
| 365 | | - | H. B. 566 (SUB) |
|---|
| 366 | | - | - 14 - |
|---|
| 23 | + | directory of designated agents; to provide for civil liability for the unauthorized use of a6 |
|---|
| 24 | + | digital replica; to provide for penalties; to bar liability arising from retroactive application7 |
|---|
| 25 | + | of this Act; to provide for definitions; to provide for an effective date; to repeal conflicting8 |
|---|
| 26 | + | laws; and for other purposes.9 |
|---|
| 27 | + | BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:10 |
|---|
| 28 | + | SECTION 1.11 |
|---|
| 29 | + | This Act shall be known and may be cited as the "Nurture Originals, Foster Art, and Keep12 |
|---|
| 30 | + | Entertainment Safe Act of 2025" or the "NO FAKES Act of 2025."13 |
|---|
| 31 | + | H. B. 566 |
|---|
| 32 | + | - 1 - 25 LC 59 0112 |
|---|
| 33 | + | SECTION 2. |
|---|
| 34 | + | 14 |
|---|
| 35 | + | Chapter 1 of Title 10 of the Official Code of Georgia Annotated, relating to selling and other15 |
|---|
| 36 | + | trade practices, is amended by enacting a new article to read as follows:16 |
|---|
| 37 | + | "ARTICLE 37 |
|---|
| 38 | + | 17 |
|---|
| 39 | + | 10-1-950.18 |
|---|
| 40 | + | As used in this article, the term:19 |
|---|
| 41 | + | (1) 'Digital replica' means a newly created, computer generated, highly realistic20 |
|---|
| 42 | + | electronic representation that is readily identifiable as the voice or visual likeness of an21 |
|---|
| 43 | + | individual that:22 |
|---|
| 44 | + | (A) Is embodied in a sound recording, image, audiovisual work, including an23 |
|---|
| 45 | + | audiovisual work that does not have any accompanying sounds, or transmission:24 |
|---|
| 46 | + | (i) In which the actual individual did not actually perform or appear; or25 |
|---|
| 47 | + | (ii) That is a version of a sound recording, image, or audiovisual work, in which the26 |
|---|
| 48 | + | actual individual did perform or appear, where the fundamental character of the27 |
|---|
| 49 | + | performance or appearance has been materially altered; and28 |
|---|
| 50 | + | (B) Does not include the electronic reproduction, use of a sample of one sound29 |
|---|
| 51 | + | recording or audiovisual work into another, remixing, mastering, or digital remastering30 |
|---|
| 52 | + | of a sound recording or audiovisual work authorized by the copyright holder.31 |
|---|
| 53 | + | (2) 'Individual' means a human being, living or dead.32 |
|---|
| 54 | + | (3) 'Online service' means:33 |
|---|
| 55 | + | (A)(i) Any public website, online application, mobile application, or virtual reality34 |
|---|
| 56 | + | environment that predominantly provides a community forum for user generated35 |
|---|
| 57 | + | content, such as sharing videos, images, games, audio files, or other material; or36 |
|---|
| 58 | + | (ii) A digital music provider, as defined in 17 U.S.C. Section 115(e); and37 |
|---|
| 59 | + | H. B. 566 |
|---|
| 60 | + | - 2 - 25 LC 59 0112 |
|---|
| 61 | + | (B) May include a social media service, social network, or application store; provided,38 |
|---|
| 62 | + | however, that such term does not include a service by wire or radio that provides the39 |
|---|
| 63 | + | capability to transmit data to and receive data from all, or substantially all, internet40 |
|---|
| 64 | + | endpoints, including any capabilities that are incidental to enabling the operation of the41 |
|---|
| 65 | + | communications service of a provider of online services or network access, or the42 |
|---|
| 66 | + | operator of facilities for such service.43 |
|---|
| 67 | + | (4) 'Production' means the creation of a digital replica.44 |
|---|
| 68 | + | (5) 'Right holder' means the individual whose voice or visual likeness is at issue with45 |
|---|
| 69 | + | respect to a digital replica and any other person that has acquired, through a license,46 |
|---|
| 70 | + | inheritance, or otherwise, the right to authorize the use of such voice or visual likeness47 |
|---|
| 71 | + | in a digital replica.48 |
|---|
| 72 | + | (6) 'Sound recording artist' means an individual who creates or performs in sound49 |
|---|
| 73 | + | recordings for economic gain or for the livelihood of the individual.50 |
|---|
| 74 | + | 10-1-951.51 |
|---|
| 75 | + | (a) Subject to the other provisions of this Code section, each individual or right holder52 |
|---|
| 76 | + | shall have the right to authorize the use of the voice or visual likeness of such individual53 |
|---|
| 77 | + | in a digital replica.54 |
|---|
| 78 | + | (b) The right described in subsection (a) of this Code section shall have the following55 |
|---|
| 79 | + | characteristics:56 |
|---|
| 80 | + | (1) The right is:57 |
|---|
| 81 | + | (A) A property right;58 |
|---|
| 82 | + | (B) Not assignable during the life of the individual; and59 |
|---|
| 83 | + | (C) Licensable, in whole or in part, exclusively or non-exclusively, by the right holder;60 |
|---|
| 84 | + | (2) The right shall not expire upon the death of the individual, without regard to whether61 |
|---|
| 85 | + | such right is commercially exploited by the individual during the individual's lifetime;62 |
|---|
| 86 | + | (3) Upon the death of the individual:63 |
|---|
| 87 | + | H. B. 566 |
|---|
| 88 | + | - 3 - 25 LC 59 0112 |
|---|
| 89 | + | (A) The right is transferable, licensable, in whole or in part, by the executors, heirs,64 |
|---|
| 90 | + | assigns, licensees, or devisees of the individual; and65 |
|---|
| 91 | + | (B) Ownership of the right may be:66 |
|---|
| 92 | + | (i) Transferred, in whole or in part, by any means of conveyance or by operation of67 |
|---|
| 93 | + | law; and68 |
|---|
| 94 | + | (ii) Bequeathed by will or passed as personal property by the applicable laws of69 |
|---|
| 95 | + | intestate succession;70 |
|---|
| 96 | + | (4) The right shall be exclusive to:71 |
|---|
| 97 | + | (A) The individual, subject to the licensing of the right during the lifetime of such72 |
|---|
| 98 | + | individual under subsection (a) of Code Section 10-1-952; and73 |
|---|
| 99 | + | (B) The right holder:74 |
|---|
| 100 | + | (i) For a period of ten years after the death of the individual; and75 |
|---|
| 101 | + | (ii) If the right holder demonstrates active and authorized public use of the voice or76 |
|---|
| 102 | + | visual likeness of the individual during the two-year period preceding the expiration77 |
|---|
| 103 | + | of the ten-year period described in division (i) of this paragraph, for an additional78 |
|---|
| 104 | + | five-year period, subject to renewal for additional five-year periods, provided that the79 |
|---|
| 105 | + | right holder can demonstrate authorized public use of the voice or visual likeness of80 |
|---|
| 106 | + | the individual during the two-year period preceding the expiration of each additional81 |
|---|
| 107 | + | five-year period; and82 |
|---|
| 108 | + | (5) The right shall terminate on the date that is the earlier of:83 |
|---|
| 109 | + | (A) The date on which the ten-year period or five-year period described in84 |
|---|
| 110 | + | division (b)(4)(B)(ii) of this Code section terminates without renewal; or85 |
|---|
| 111 | + | (B) The date that is 70 years after the death of the individual.86 |
|---|
| 112 | + | 10-1-952.87 |
|---|
| 113 | + | (a) A license described in subparagraph (b)(4)(A) of Code Section 10-1-951:88 |
|---|
| 114 | + | H. B. 566 |
|---|
| 115 | + | - 4 - 25 LC 59 0112 |
|---|
| 116 | + | (1) While the individual is living, is valid only to the extent that the license duration does89 |
|---|
| 117 | + | not exceed ten years; and90 |
|---|
| 118 | + | (2) Shall be valid only if the license agreement:91 |
|---|
| 119 | + | (i) Is in writing and signed by the individual or an authorized representative of the92 |
|---|
| 120 | + | individual; and93 |
|---|
| 121 | + | (ii) Includes a reasonably specific description of the intended uses of the applicable94 |
|---|
| 122 | + | digital replica.95 |
|---|
| 123 | + | (b) A license as described in subparagraph (b)(1)(C) of Code Section 10-1-951 involving96 |
|---|
| 124 | + | a living individual who is younger than 18 years of age:97 |
|---|
| 125 | + | (1) Is valid only to the extent that the license duration does not exceed five years, but in98 |
|---|
| 126 | + | any case terminates when the individual reaches 18 years of age;99 |
|---|
| 127 | + | (2) Shall be valid only if the license agreement:100 |
|---|
| 128 | + | (A) Is in writing and signed by the individual or an authorized representative of the101 |
|---|
| 129 | + | individual; and102 |
|---|
| 130 | + | (B) Includes a reasonably specific description of the intended uses of the digital103 |
|---|
| 131 | + | replica; and104 |
|---|
| 132 | + | (3) The license is approved by a court in accordance with the law of this state.105 |
|---|
| 133 | + | (c) The provisions of subsections (a) and (b) of this Code section shall not apply if the106 |
|---|
| 134 | + | license is governed by a collective bargaining agreement that addresses digital replicas.107 |
|---|
| 135 | + | (d) The provisions of subsections (a) and (b) of this Code section shall not affect terms and108 |
|---|
| 136 | + | conditions of a license or related contract other than those described in this Code section,109 |
|---|
| 137 | + | and the expiration of such license does not affect the remainder of the license or related110 |
|---|
| 138 | + | contract.111 |
|---|
| 139 | + | H. B. 566 |
|---|
| 140 | + | - 5 - 25 LC 59 0112 |
|---|
| 141 | + | 10-1-953.112 |
|---|
| 142 | + | A post-mortem transfer or license as provided in subparagraph (b)(3)(A) of Code113 |
|---|
| 143 | + | Section 10-1-951 shall be valid only if the transfer agreement or license agreement is in114 |
|---|
| 144 | + | writing and signed by the right holder or an authorized representative of the right holder.115 |
|---|
| 145 | + | 116 |
|---|
| 146 | + | 10-1-954. |
|---|
| 147 | + | 117 |
|---|
| 148 | + | A digital replica that is embodied in a sound recording, image, audiovisual work, including118 |
|---|
| 149 | + | an audiovisual work that does not have any accompanying sounds, or transmission, and the119 |
|---|
| 150 | + | use of which is authorized pursuant to the terms of a license, may continue to be utilized120 |
|---|
| 151 | + | in a manner consistent with the terms of that license after the expiration or termination of121 |
|---|
| 152 | + | the license.122 |
|---|
| 153 | + | 10-1-955.123 |
|---|
| 154 | + | (a) Any person that engages in an activity provided in subsection (b) of this Code section124 |
|---|
| 155 | + | shall be liable in a civil action brought under subsection (e) of this Code section.125 |
|---|
| 156 | + | (b) The following activities shall be prohibited pursuant to this article:126 |
|---|
| 157 | + | (1) The production of a digital replica without consent of the applicable right holder; or127 |
|---|
| 158 | + | (2) The publication, reproduction, display, distribution, transmission of, or otherwise128 |
|---|
| 159 | + | making available to the public a digital replica without consent of the applicable right129 |
|---|
| 160 | + | holder.130 |
|---|
| 161 | + | (c) To incur liability under this Code section, a person engaging in an activity shall have131 |
|---|
| 162 | + | actual knowledge, which could be obtained through a notification that satisfies132 |
|---|
| 163 | + | subsection (k) of this Code section, or shall willfully avoid having such knowledge, that:133 |
|---|
| 164 | + | (1) The applicable material is a digital replica; and134 |
|---|
| 165 | + | (2) The digital replica was not authorized by the applicable right holder.135 |
|---|
| 166 | + | (d) It shall not be a violation of subsection (a) of this Code section if:136 |
|---|
| 167 | + | H. B. 566 |
|---|
| 168 | + | - 6 - 25 LC 59 0112 |
|---|
| 169 | + | (1) The applicable digital replica is produced or used in a bona fide news, public affairs,137 |
|---|
| 170 | + | or sports broadcast or account, provided that the digital replica is the subject of, or is138 |
|---|
| 171 | + | materially relevant to, the subject of such broadcast or account; or139 |
|---|
| 172 | + | (2) The applicable digital replica is a representation of the applicable individual in a140 |
|---|
| 173 | + | documentary or in a historical or biographical manner, including some degree of141 |
|---|
| 174 | + | fictionalization, unless:142 |
|---|
| 175 | + | (A) The production or use of that digital replica creates the false impression that the143 |
|---|
| 176 | + | work is an authentic sound recording, image, transmission, or audiovisual work in144 |
|---|
| 177 | + | which the individual participated; or145 |
|---|
| 178 | + | (B) The digital replica is embodied in a musical sound recording that is synchronized146 |
|---|
| 179 | + | to accompany a motion picture or other audiovisual work, except to the extent that the147 |
|---|
| 180 | + | use of that digital replica is protected by the First Amendment to the Constitution of the148 |
|---|
| 181 | + | United States;149 |
|---|
| 182 | + | (3) The applicable digital replica is produced or used consistent with the public interest150 |
|---|
| 183 | + | in bona fide commentary, criticism, scholarship, satire, or parody;151 |
|---|
| 184 | + | (4) The use of the applicable digital replica is fleeting or negligible; or152 |
|---|
| 185 | + | (5) The applicable digital replica is used in an advertisement or commercial153 |
|---|
| 186 | + | announcement for any purpose described in paragraphs (1) through (4) of this subsection154 |
|---|
| 187 | + | and the applicable digital replica is relevant to the subject of the work so advertised or155 |
|---|
| 188 | + | announced.156 |
|---|
| 189 | + | (e) The exception provided in subsection (d) of this Code section shall not apply where the157 |
|---|
| 190 | + | applicable digital replica is used to depict sexually explicit conduct, as such term is set158 |
|---|
| 191 | + | forth in Code Section 16-12-100.159 |
|---|
| 192 | + | (f) No person shall be secondarily liable for a violation of this Code section for160 |
|---|
| 193 | + | manufacturing, importing, offering to the public, providing, or otherwise distributing a161 |
|---|
| 194 | + | product or service unless the product or service:162 |
|---|
| 195 | + | (1) Is primarily designed to produce one or more unauthorized digital replicas;163 |
|---|
| 196 | + | H. B. 566 |
|---|
| 197 | + | - 7 - 25 LC 59 0112 |
|---|
| 198 | + | (2) Has only limited commercially significant purpose or use other than to produce an164 |
|---|
| 199 | + | unauthorized digital replica; or165 |
|---|
| 200 | + | (3) Is marketed, advertised, or otherwise promoted by that person or another acting in166 |
|---|
| 201 | + | concert with that person with that person's knowledge for use in producing an167 |
|---|
| 202 | + | unauthorized digital replica.168 |
|---|
| 203 | + | (g) An online service shall not be liable for violating the right described in Code169 |
|---|
| 204 | + | Section 10-1-951 by referring or linking a user to an unauthorized digital replica, or by170 |
|---|
| 205 | + | carrying out an activity described in subsection (b) of this Code section, if, upon receiving171 |
|---|
| 206 | + | a notification as provided in subsection (c) of this Code section, the online service removes172 |
|---|
| 207 | + | or disables access to the material that is claimed to be an unauthorized digital replica as173 |
|---|
| 208 | + | soon as is technically and practically feasible for such online service.174 |
|---|
| 209 | + | (h) An online service shall not be liable for violating the right described in Code175 |
|---|
| 210 | + | Section 10-1-951 by storing third-party provided material that resides on a system or176 |
|---|
| 211 | + | network controlled or operated by or for the online service if, upon receiving a notification177 |
|---|
| 212 | + | that satisfies subsection (c) of this Code section, the online service:178 |
|---|
| 213 | + | (1) Removes, or disables access to, all instances of the material, or an activity using the179 |
|---|
| 214 | + | material, that is claimed to be an unauthorized digital replica, as soon as is technically180 |
|---|
| 215 | + | and practically feasible for such online service; and181 |
|---|
| 216 | + | (2) Having done so, takes reasonable steps to promptly notify the third party which182 |
|---|
| 217 | + | provided the material that the online service has removed or disabled access to the183 |
|---|
| 218 | + | material.184 |
|---|
| 219 | + | (i) The limitations on liability established under this Code section shall apply to an online185 |
|---|
| 220 | + | service only if the online service has designated an agent to receive notifications under186 |
|---|
| 221 | + | subsection (c) of this Code section by making available through the online service,187 |
|---|
| 222 | + | including on the public website of the online service in a location accessible to the public,188 |
|---|
| 223 | + | and by providing to the Secretary of State, substantially the following information:189 |
|---|
| 224 | + | (1) The name, address, telephone number, and electronic mail address of the agent; and190 |
|---|
| 225 | + | H. B. 566 |
|---|
| 226 | + | - 8 - 25 LC 59 0112 |
|---|
| 227 | + | (2) Other contact information that the Secretary of State may determine appropriate.191 |
|---|
| 228 | + | (j) The Secretary of State shall maintain a current directory of designated agents for the192 |
|---|
| 229 | + | purposes of this Code section. The directory of designated agents shall be available to the193 |
|---|
| 230 | + | public for inspection, including through the internet. The Secretary of State may require194 |
|---|
| 231 | + | payment of a reasonable filing fee by the registrant, which may take into consideration the195 |
|---|
| 232 | + | costs of maintaining the directory of designated agents.196 |
|---|
| 233 | + | (k) To be effective under this Code section, a notification of a claimed violation of the197 |
|---|
| 234 | + | right described in Code Section 10-1-951 shall be a written communication provided to the198 |
|---|
| 235 | + | designated agent of an online service that includes the following:199 |
|---|
| 236 | + | (1) A physical or electronic signature of the right holder, a person authorized to act on200 |
|---|
| 237 | + | behalf of the right holder, or an eligible plaintiff under subsection (n) of this Code201 |
|---|
| 238 | + | section;202 |
|---|
| 239 | + | (2) Identification of the individual, the voice or visual likeness of whom is being used203 |
|---|
| 240 | + | in an unauthorized digital replica;204 |
|---|
| 241 | + | (3) Identification of the material containing an unauthorized digital replica, including205 |
|---|
| 242 | + | information sufficient to allow the online service to locate the allegedly unauthorized206 |
|---|
| 243 | + | digital replica;207 |
|---|
| 244 | + | (4) Information reasonably sufficient to permit the online service to contact the notifying208 |
|---|
| 245 | + | party, such as an address, telephone number, and electronic mail address;209 |
|---|
| 246 | + | (5) A statement that the notifying party believes in good faith that the material is an210 |
|---|
| 247 | + | unauthorized use of a digital replica;211 |
|---|
| 248 | + | (6) If not the right holder or an eligible plaintiff under subsection (n) of this Code212 |
|---|
| 249 | + | section, a statement that the notifying party has the authority to act on behalf of the right213 |
|---|
| 250 | + | holder; and214 |
|---|
| 251 | + | (7) For the purposes of subsection (g) of this Code section, information reasonably215 |
|---|
| 252 | + | sufficient to:216 |
|---|
| 253 | + | H. B. 566 |
|---|
| 254 | + | - 9 - 25 LC 59 0112 |
|---|
| 255 | + | (A) Identify the reference or link to the material or activity claimed to be an217 |
|---|
| 256 | + | unauthorized digital replica that is to be removed or to which access is to be disabled;218 |
|---|
| 257 | + | and219 |
|---|
| 258 | + | (B) Permit the online service to locate the reference or link described in220 |
|---|
| 259 | + | subparagraph (A) of this paragraph.221 |
|---|
| 260 | + | (l) It shall be unlawful to knowingly materially misrepresent under subsection (k) of this222 |
|---|
| 261 | + | Code section:223 |
|---|
| 262 | + | (1) That the material requested to be removed is an unauthorized digital replica;224 |
|---|
| 263 | + | (2) That a person has the authority to act on behalf of the right holder; or225 |
|---|
| 264 | + | (3) That a digital replica is not authorized by the right holder or by other law.226 |
|---|
| 265 | + | (m) Any person that violates subsection (l) of this Code section shall be liable for an227 |
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| 266 | + | amount equal to the greater of $5,000.00 or any actual damages, including costs and228 |
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| 267 | + | attorney's fees, incurred by the alleged violator, as well as by any online service injured by229 |
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| 268 | + | the reliance of the online service on the misrepresentation in removing or disabling access230 |
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| 269 | + | to the material or activity claimed to be an unauthorized digital replica.231 |
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| 270 | + | (n) A civil action for a violation of this Code section may be brought by:232 |
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| 271 | + | (1) A right holder;233 |
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| 272 | + | (2) If the individual is younger than 18 years of age, a parent or guardian of the234 |
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| 273 | + | individual;235 |
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| 274 | + | (3) Any other person that controls, including by virtue of a license, the right to authorize236 |
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| 275 | + | the use of the voice or visual likeness of the right holder;237 |
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| 276 | + | (4) Any other person that owns or controls the right to authorize the use of the voice or238 |
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| 277 | + | visual likeness of a deceased individual; or239 |
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| 278 | + | (5) In the case of a digital replica involving a sound recording artist, any person that has,240 |
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| 279 | + | directly or indirectly, entered into:241 |
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| 280 | + | (A) A contract for the exclusive personal services of the sound recording artist as a242 |
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| 281 | + | sound recording artist; or243 |
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| 282 | + | H. B. 566 |
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| 283 | + | - 10 - 25 LC 59 0112 |
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| 284 | + | (B) An exclusive license to distribute or transmit one or more works that capture the244 |
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| 285 | + | audio performance of the sound recording artist.245 |
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| 286 | + | (o) A civil action may not be brought under this Code section unless the action is246 |
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| 287 | + | commenced not later than three years after the date on which the party seeking to bring the247 |
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| 288 | + | civil action discovered, or with due diligence should have discovered, the applicable248 |
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| 289 | + | violation.249 |
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| 290 | + | (p) It shall not be a defense in a civil action brought under this Code section that the250 |
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| 291 | + | defendant displayed or otherwise communicated to the public a disclaimer stating that the251 |
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| 292 | + | applicable digital replica was unauthorized or disclosing that the digital replica was252 |
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| 293 | + | generated through the use of artificial intelligence or other technology.253 |
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| 294 | + | (q) In any civil action brought under this Code section:254 |
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| 295 | + | (1) An individual or entity that engages in an activity described in subsection (b) of Code255 |
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| 296 | + | Section 10-1-955 shall be liable to the injured party in an amount equal to the greater of:256 |
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| 297 | + | (A)(i) In the case of an individual, $5,000.00 per work embodying the applicable257 |
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| 298 | + | unauthorized digital replica;258 |
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| 299 | + | (ii) In the case of an entity that is an online service, $5,000.00 per violation; and259 |
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| 300 | + | (iii) In the case of an entity that is not an online service, $25,000.00 per work260 |
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| 301 | + | embodying the applicable unauthorized digital replica; or261 |
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| 302 | + | (B) Any actual damages suffered by the injured party as a result of the activity, plus262 |
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| 303 | + | any profits from the unauthorized use that are attributable to such use and are not taken263 |
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| 304 | + | into account in computing the actual damages.264 |
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| 305 | + | (2) The plaintiff may seek injunctive or other equitable relief;265 |
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| 306 | + | (3) In the case of willful activity in which the injured party has proven that the defendant266 |
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| 307 | + | acted with malice, fraud, knowledge, or willful avoidance of knowledge that the conduct267 |
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| 308 | + | violated the law, the court may award to the injured party punitive damages;268 |
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| 309 | + | H. B. 566 |
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| 310 | + | - 11 - 25 LC 59 0112 |
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| 311 | + | (4) If the party bringing the action prevails, the court shall award reasonable attorney's269 |
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| 312 | + | fees. If the party defending the action prevails, the court shall award reasonable270 |
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| 313 | + | attorney's fees if the court determines that the action was not brought in good faith;271 |
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| 314 | + | (5) For purposes of this subsection, the term 'violation' means each display, copy,272 |
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| 315 | + | transmission, and each instance of the unauthorized digital replica being otherwise made273 |
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| 316 | + | available on the online service, unless the online service has taken reasonable steps to274 |
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| 317 | + | remove, or disable access to, the unauthorized digital replica as soon as is technically and275 |
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| 318 | + | practically feasible for the online service upon acquiring knowledge as set forth in276 |
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| 319 | + | subsection (c)(3) of Code Section 10-1-955;277 |
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| 320 | + | (6) An online service that has an objectively reasonable belief that material that is278 |
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| 321 | + | claimed to be an unauthorized digital replica does not qualify as a digital replica under279 |
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| 322 | + | paragraph (1) of Code Section 10-1-950 shall not be liable for statutory or actual damages280 |
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| 323 | + | exceeding $1 million regardless of whether the material is ultimately determined to be281 |
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| 324 | + | an unauthorized digital replica; and282 |
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| 325 | + | (7) In the event that the third party that provided the material that the online service has283 |
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| 326 | + | removed or to which the online service has disabled access files a lawsuit against the284 |
|---|
| 327 | + | sender of a notice under subsection (k) of this Code section claiming that such notice was285 |
|---|
| 328 | + | false or deceptive as provided in subsection (l) of this Code section, the online service286 |
|---|
| 329 | + | may, provided that the lawsuit was filed not later than 14 days after the user receives287 |
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| 330 | + | notice that the online service has removed or disabled access to the material, restore the288 |
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| 331 | + | removed material to its network for access by members of the public without monetary289 |
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| 332 | + | liability therefor to either the notice sender or the third party that provided the material290 |
|---|
| 333 | + | that the online service had removed or disabled access.291 |
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| 334 | + | 10-1-956.292 |
|---|
| 335 | + | (a) Nothing in this article shall be construed to abrogate causes of action under the293 |
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| 336 | + | common law.294 |
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| 337 | + | H. B. 566 |
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| 338 | + | - 12 - 25 LC 59 0112 |
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| 339 | + | (b) Liability under this article shall apply only to:295 |
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| 340 | + | (1) Conduct occurring after the date of enactment of this Act; and296 |
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| 341 | + | (2) In the case of conduct covered by a license or contract, a license or contract that is297 |
|---|
| 342 | + | executed after the date of enactment of this Act.298 |
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| 343 | + | (c) The right granted under subsection (b) of Code Section 10-1-951:299 |
|---|
| 344 | + | (1) Shall apply to any individual, regardless of whether the individual dies before or after300 |
|---|
| 345 | + | the date of enactment of this article; and301 |
|---|
| 346 | + | (2) In the case of a right holder who has died before the date of enactment of this article,302 |
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| 347 | + | shall vest in the executors, heirs, assigns, or devisees of the right holder."303 |
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| 348 | + | SECTION 3.304 |
|---|
| 349 | + | This Act shall become effective 180 days after its approval by the Governor or 180 days after305 |
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| 350 | + | its becoming law without such approval.306 |
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| 351 | + | SECTION 4.307 |
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| 352 | + | All laws and parts of laws in conflict with this Act are repealed.308 |
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| 353 | + | H. B. 566 |
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| 354 | + | - 13 - |
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