WMG CEO lays out his vision and proposed AI rules during Senate hearing on Deepfakes bill

The US Senate Judiciary Committee met on Tuesday (April 30) to discuss a proposed bill that would effectively create a federal right of publicity for artists in a hearing that featured testimony from the CEO of Warner Music Group Robert Kynclartist FKA Twigs, CEO Digital Media Association (DiMA); Graham Daviesnational executive director/chief negotiator SAG-AFTRA; Duncan Crabtree-IrelandSenior Vice President/Associate General Counsel of the Motion Picture Association Ben Seffner and professor at the University of San Diego Lisa P. Ramsey.

The draft bill – called the Nurture Originals, Foster Art, and Keep Entertainment Safe Act (NO FAKES Act) – would create a federal right for artists, actors and others to sue those who create “digital copies” of their image, voice or visual likeness without permission. These individuals were previously protected only through a patchwork of state “right of publicity” laws. The NO FAKES Act, first introduced in October, is supported by a bipartisan group of US senators, including Sen. Chris Koons (D-Del.), Sen. Marsha Blackburn (R-Tenn.), Sen. Amy Klobuchar (D-Minn.) and Sen. Tom Tillis (RN.C.).

Warner Music Group (WMG) supports the NO FAKES Act along with many other music businesses, the RIAA and the Human Artistry Campaign. During Kyncl's testimony, the executive noted that “we are at a unique moment in time where we can still act, and we can do it before it gets out of control,” noting how the government has failed to properly handle data privacy in Past. He added that it is imperative that we overcome artificial intelligence (AI) to protect the livelihoods of artists and entertainment companies.

“When you have these deepfakes out there [on streaming platforms],” Kyncl said, “artists are actually competing with themselves for revenue from streaming platforms because there's a fixed amount of revenue on each of the streaming platforms. If someone uploads fake FKA Twigs songs, for example, and those songs eat up that revenue pool, then there's less left for her original songs. This is its economic impact in the long run and the volume of content that will then flow to digital service providers will grow exponentially, [making it] it's harder for artists to get heard and really reach a lot of fans. Creativity will eventually be stifled.”

Kyncl, who recently celebrated his first anniversary at the helm of WMG, previously held the role of chief business officer at YouTube. When asked if platforms such as YouTube, Spotify and others represented by DiMA should be held responsible for unauthorized AI fakes on their platforms, Kyncl had a measured view: “There has to be an opportunity for [the services] to cooperate and cooperate with all of us to [develop a protocol for removal],” he said.

During his testimony, Davies spoke from the perspective of the digital service providers (DSPs) that DiMA represents. “There was no provocation [from platforms] in its abolition [deepfake] content quickly,” he said. “We don't see our members needing additional burdens or incentives here. But … if there's going to be secondary liability, we're going to very much aim for it to be a safe harbor for effective damages.”

Davies added, however, that the Digital Copyright Act (DMCA), which provides a notice-and-takedown process for copyright infringement, is not the perfect model for right-of-publicity offenses. “We don't see [that] as a good process as well [it was] designed for copyright…our members can certainly work with the committee on what we think would be effective [procedure]Davis said. He added, “It's really important that we get specific information on how to identify offensive content so that it can be effectively removed.”

There is currently no perfect solution to tracking fake AI online, making it difficult to implement a takedown process. Kyncl said he hopes for a system that builds on the success of YouTube's Content ID, which tracks recordings. “I hope we can hold on [a Content ID-like system] further and apply it to AI voice and similarity scores using watermarks to mark content and take care of provenance,” he said.

The NO FAKES bill, as currently written, would create a national property right in one's image, voice or visual likeness, allowing a person to sue anyone who created a “newly created, electronic, electronic representation” of them. It also includes rights of publicity that do not expire on death and could be controlled by a person's heirs for 70 years after their death. Most state copyright laws were written long before the invention of artificial intelligence and often limit or exclude the protection of a person's name, likeness and voice after death.

The proposed 70 years of post-mortem protection was one of the main points of contention among the participants in the hearing. Kyncl agreed with points made by SAG-AFTRA's Crabtree-Ireland – the actors' union that recently reached a tentative deal with majors including WMG on the “ethical” use of artificial intelligence – whose view was that the right should not be limited to 70 years after the massacre and instead should be “perpetual”, in his words.

“Each one of us is unique, there is no one else like us and there never will be,” Crabtree-Ireland said. “This is not the same thing as copyright. It's not the same as “We'll use this to generate more creativity beyond this later [after the copyright enters public domain].' It is about a person's legacy. It's about a person's right to give it to their family.”

Kyncl added simply, “I agree with Mr. Crabtree-Ireland 100%.”

However, Sheffner shared a different view on posthumous protection for publicity rights, saying that while “for living professional performers the use of a digital copy without their consent affects their ability to live… this justification for maintaining work disappears after the autopsy. I have yet to hear of any compelling government interest in protecting digital copies once someone dies. I think there will be serious problems with the First Amendment.”

Elsewhere during the hearing, Crabtree-Ireland expressed the need to limit the amount of time a new artist can assign their publicity rights during their lifetime to ensure they are not exploited by companies entertainment. “If you had, say, a 21-year-old artist licensing their image, likeness, or voice, there should be no chance of that happening for 50 or 60 years in their lifetime and not having any ability to renegotiate that the transfer. I think there should be a shorter maybe seven-year limitation on that.”