Welcome back to the Re:Create Recap! As we start August recess, Re:Create members have worked hard to promote balanced copyright while supporting creativity and innovation for the public. Since our last edition, allies for balanced copyright have been actively voicing concerns about legislation that would stifle creativity and speaking up at roundtable discussions on the intersection of AI technology and NIL protections.

This week, at the U.S. Patent and Trademark Office’s (USPTO) public roundtable on AI and protections for use of an individual’s name, image, voice, likeness, or reputation, representatives from Electronic Frontier Foundation (EFF), Public Knowledge (PK), Library Copyright Alliance (LCA), Computer and Communications Industry Association (CCIA) and myself shared perspectives on these issues that might otherwise have been left out of the room. And, perhaps surprisingly, we were able to express solidarity not only within Re:Create but also with some of the concerns expressed by content industry groups, including the Motion Picture Association (MPA), the Entertainment Software Association (ESA), and the Software and Information Industry Association (SIIA), about new NIL property right proposals trampling the First Amendment and prejudging important fair use litigation now in the courts.

Civil society’s views were well-articulated and represented, but there was one contribution in particular that’s worth highlighting. LCA’s Jonathan Band astutely pointed to critical constitutional concerns with developing digital replica legislation like the NO FAKES Act. As he explained, Congress lacks constitutional authority to enact new intellectual property rights in NIL. Under Feist v. Rural Telephone and Railway Labor Executives’ Ass’n. v. Gibbons, it’s clear that the IP power is limited to original creative works (and patentable inventions), so Congress cannot grant property rights in an individual’s voice or visual likeness, even under the Commerce Clause. To avoid a constitutional challenge, policymakers should abandon the NO FAKES Act and other property-based approaches and focus on preventing specific harmful uses of digital replica technology.

As Congress continues to examine laws around AI and copyright, Re:Create urges lawmakers to carefully collaborate with the full spectrum of stakeholders to protect the creative and expressive rights of artists and the public.