ESA warns No Fakes Act could create legal uncertainty for the video game industry

• The ESA has urged the US Senate Judiciary Committee to revise the No Fakes Act.
• They say the bill does not currently distinguish between harmful deepfakes and legitimate video game characters.
• ESA warns that potential lawsuits involving digital replicas and character likeness could pose an issue with the current bill.

The Entertainment Software Association (ESA) has called on the US Senate Judiciary Committee to amend the proposed No Fakes Act.

The letter argues that, in its current form, the bill could lead to unintended complications for the video games industry. 

ESA stated that a major issue is that the bill’s definition of a digital replica is too broad and fails to distinguish between harmful content, such as deepfakes and realistic, legitimate digital characters used in video games. 

The letter points to realistic-looking characters already found in games such as Tomb Raider, Call of Duty, Red Dead Redemption and The Last of Us. 

According to the trade body, under the current bill, realistic digital characters could expose developers to legal challenges from individuals who believe a game character resembles them, including the many background characters seen in larger games.

Legal concerns

Concerns were also raised relating to the tools and services used to create digital replicas.

It was noted that many technologies used by game developers and players for avatar creation in character customisation menus are legitimate, multi-purpose tools that the legislation could unintentionally impact.

The organisation said it supports the need to address harm caused by deepfakes and other forms of digital impersonation. However, it also believes the bill needs further refinement to avoid creating uncertain territory for video game studios and technology providers. 

“There are other problems with the bill as well, and ESA has offered common-sense solutions to narrow this legislation in a way that addresses legitimate harms,” wrote ESA president and CEO Stanley Pierre-Louis.