Research
& Policy

Congress is now considering whether to legislate a new federal right to bar the unauthorized replication of individuals’ (including actors’ and recording artists’) likenesses and voices. MPA agrees that legislation to address these concerns may be warranted. However, in drafting any such bill, Congress must recognize that it would be doing something that the First Amendment sharply limits: regulating speech. Enacting new legislation to address specific harms from the misuse of digital replicas likely can be done consistent with the First Amendment. But it will take very careful drafting to accomplish the goal of addressing these harms without inadvertently chilling legitimate, constitutionally protected uses of technologies to enhance storytelling in our industry, along with other creative endeavors.

This statement will summarize the vital First Amendment issues implicated by a potential federal statute creating a “digital replica” right, emphasizing that creation of such a law would constitute a content-based regulation of speech, subjecting it to strict scrutiny, which requires both the existence of a compelling state interest to justify the regulation and narrow tailoring to serve that interest. MPA stands ready to work with Congress to ensure that any new legislation governing voices or likenesses respects First Amendment rights and creative freedoms, including those of filmmakers, broadcasters, photographers, journalists, and others who employ technologies to entertain and educate audiences in the U.S. and around the world.

Congress is now considering whether to legislate a new federal right to bar the unauthorized replication of individuals’ (including actors’ and recording artists’) likenesses and voices. MPA agrees that legislation to address these concerns may be warranted. However, in drafting any such bill, Congress must recognize that it would be doing something that the First Amendment sharply limits: regulating speech. Enacting new legislation to address specific harms from the misuse of digital replicas likely can be done consistent with the First Amendment. But it will take very careful drafting to accomplish the goal of addressing these harms without inadvertently chilling legitimate, constitutionally protected uses of technologies to enhance storytelling in our industry, along with other creative endeavors.

This statement will summarize the vital First Amendment issues implicated by a potential federal statute creating a “digital replica” right, emphasizing that creation of such a law would constitute a content-based regulation of speech, subjecting it to strict scrutiny, which requires both the existence of a compelling state interest to justify the regulation and narrow tailoring to serve that interest. MPA stands ready to work with Congress to ensure that any new legislation governing voices or likenesses respects First Amendment rights and creative freedoms, including those of filmmakers, broadcasters, photographers, journalists, and others who employ technologies to entertain and educate audiences in the U.S. and around the world.