Clarify the applicability of Federal trademark law in the area of digital replicas of identifying characteristics of individuals

Section 43 of the Trademark Act of 1946 (15 U.S.C. 1125) is amended—

(1) in subsection (a)—

(A) in paragraph (1), by striking or device, and inserting device, or digital replica,; and

(B) by adding at the end the following:

(4) In a civil action brought pursuant to paragraph (1)(A) for the use of a digital replica by a person on or in connection with any goods or services, or any container for goods there shall be a rebuttable presumption that such use is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.

(5) A person shall not be liable in a civil action brought pursuant to paragraph (1)(A) for the use of a digital replica on or in connection with any goods or services, or any container for goods if such use is—

(A) for bona fide news, public affairs, or sports broadcast or account, or any portion thereof;

(B) for bona fide commentary, criticism, satire, or parody, or any portion thereof;

(C) for bona fide scholarship or educational purposes;

(D) a creative work, the character and purpose of which is primarily expressive or artistic in nature rather than commercial, or any portion thereof;

(E) otherwise protected by the First Amendment to the Constitution of the United States; or

(F) any combination of the above.

(6) With the exception of relief sought under sections 32 and 43(c) of this Act, section 501 of title 17, and section 271 of title 35, a person may not seek relief under any other provision of Federal, State, local, or municipal law for any use of a digital replica for which the person files a civil action asserting liability under this section and relies upon the rebuttable presumption in paragraph (4) in a pleading, dispositive motion, response to a dispositive motion, or at trial on the merits; and

(7) This subsection shall be considered a law pertaining to intellectual property for the purposes of section 230(e) of the Communications Act of 1934 (47 U.S.C. 230).

(8) In this subsection—

(A) the term digital replica means computer-generated representation of an identifying characteristic of a subject person, who at the time of the use of the representation is a living individual human being, where—

(i) the identifying characteristic is an image, voice, likeness, or other characteristic of the subject person, or a characteristic of the creative works of the subject person, that is distinctive to the subject person such that the use of such characteristic is likely to be associated with the subject person and no other person by reasonable and ordinary participants in the relevant industry or market;

(ii) the representation is identical with, or substantially indistinguishable from, the actual identifying characteristic of the subject person from the perspective of reasonable and ordinary participants in the relevant industry or market; and

(iii) based on the representation itself, it is apparent to reasonable and ordinary participants in the relevant industry or market that the purpose of the representation, in whole or in part, was to duplicate the identifying characteristic of the subject person; and

(B) the term “relevant industry or market” means the industry or market for the goods or services that are the subject of the civil action brought pursuant to paragraph (1)(A).

Nothing in this Act, or the amendments made by this Act, may be construed so as to limit the scope of section 43 of the Trademark Act of 1946 (15 U.S.C. 1125) as such section existed prior to the enactment of this Act.

This Act, and the amendments made by this Act, shall apply only to a civil action—

(1) brought pursuant to section 43(a) of the Trademark Act of 1946 after the date of the enactment of this Act; and

(2) for the use of a digital replica on or in connection with any goods or services, or any container for goods, after the date of the enactment of this Act.

If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, the remainder of the Act, and the application of such provision to other persons or circumstances shall not be affected thereby.

In this section, the term Trademark Act of 1946 means the Act entitled An Act to provide for the registration and protection of trademarks used in commerce, to carry out the provisions of certain international conventions, and for other purposes, approved July 5, 1946.