WHAT THIS BILL REGULATES · 1 REQUIREMENT TYPE
How Is This Bill Enforced
Verbatim statutory text on the left; plain-language analysis and a per-section checklist on the right. Numbered markers cross-link to the matching checklist row.
(A) For the purposes of this section, "digital replicaDigital replica"Digital replica" means a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that is embodied in a sound recording, image, audiovisual work, or transmission in which the actual individual either did not actually perform or appear, or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered. "Digital replica" does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.Va. Code § 8.01-40(A)" means a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that is embodied in a sound recording, image, audiovisual work, or transmission in which the actual individual either did not actually perform or appear, or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered. "Digital replicaDigital replica"Digital replica" means a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that is embodied in a sound recording, image, audiovisual work, or transmission in which the actual individual either did not actually perform or appear, or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered. "Digital replica" does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.Va. Code § 8.01-40(A)" does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.
Subsection A introduces the defined term digital replica, covering computer-generated, highly realistic electronic representations readily identifiable as a person's voice or visual likeness in a sound recording, image, audiovisual work, or transmission — where the individual did not actually perform or appear, or did but the performance was materially altered. The definition expressly excludes remixing, mastering, digital remastering, and sampling authorized by the copyright holder.
(B) 1 Any person whose name, portrait, voice, likeness, or picture is used without having first obtained the written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of such minor's parent or guardian, for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person's name, portrait, voice, likeness, or picture to prevent and restrain the use thereof and may also sue and recover damages for any injuries sustained by reason of such use. And if the defendant knowingly used such person's name, portrait, voice, likeness, or picture in such manner as is forbidden or declared to be unlawful by this chapter, the jury, in its discretion, may award punitive damages.
Subsection B restates and expands the longstanding Virginia right-of-publicity cause of action, adding voice and likeness to the previously protected attributes of name, portrait, and picture. Any person whose protected attributes are used without written consent for advertising or trade purposes may sue for injunctive relief and actual damages. If the defendant knowingly used the attributes unlawfully, punitive damages may be awarded at the jury's discretion. Consent must come from the individual, or if deceased from the surviving consort or next of kin, or if a minor from the parent or guardian.
(C) 2 Notwithstanding the provisions of subsection B, a person who produces, distributes, or makes available the digital replica of a person's voice or likeness in an expressive audiovisual work or sound recording without prior written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of such minor's parent or guardian shall be liable in an amount equal to the greater of $1,000 or the actual damages suffered by the person, surviving consort, next of kin, parent, or guardian.
Subsection C creates the bill's core AI-specific obligation: a person who produces, distributes, or makes available a digital replica of another person's voice or likeness in an expressive audiovisual work or sound recording without written consent is liable for the greater of $1,000 or actual damages. This is framed as a supplement to — not a replacement for — the broader right-of-publicity action in subsection B, as indicated by the "Notwithstanding" preamble. The consent hierarchy mirrors subsection B: the individual, the surviving consort or next of kin if deceased, or the parent or guardian if a minor.
(D) For purposes of subsection C, a digital replica of a person's voice or likeness in an expressive audiovisual work or sound recording may be used without prior written consent of such person, or if dead, of the surviving consort and if none, of the next of kin, or if a minor, the written consent of such minor's parent or guardian if the use of the digital replicaDigital replica"Digital replica" means a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that is embodied in a sound recording, image, audiovisual work, or transmission in which the actual individual either did not actually perform or appear, or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered. "Digital replica" does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.Va. Code § 8.01-40(A) meets any of the following criteria:
(D)(1) The use is in connection with a bona fide news, public affairs, or sports broadcast or account, provided that the digital replicaDigital replica"Digital replica" means a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that is embodied in a sound recording, image, audiovisual work, or transmission in which the actual individual either did not actually perform or appear, or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered. "Digital replica" does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.Va. Code § 8.01-40(A) is the subject of, or is materially relevant to, the subject of such broadcast or account;
(D)(2) The use is consistent with the public interest in bona fide commentary, criticism, scholarship, satire, or parody;
(D)(3) The use is a representation of the individual as the individual's self in a documentary or in a historical or biographical manner, including some degree of fictionalization, unless the use creates the false impression that the work is an authentic recording in which the individual participated or the digital replicaDigital replica"Digital replica" means a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that is embodied in a sound recording, image, audiovisual work, or transmission in which the actual individual either did not actually perform or appear, or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered. "Digital replica" does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.Va. Code § 8.01-40(A) is embodied in a musical sound recording that is synchronized to accompany a motion picture or other audiovisual work, except to the extent that the use is protected by the First Amendment to the Constitution of the United States;
(D)(4) The use is fleeting or incidental; or
(D)(5) The use is in an advertisement or commercial announcement for a work described in this subsection and is relevant to the subject of the work so advertised or announced.
Subsection D enumerates five categories of uses that exempt a digital replica from the consent requirement in subsection C: (1) bona fide news, public affairs, or sports broadcasts where the replica is the subject of or materially relevant to the broadcast; (2) bona fide commentary, criticism, scholarship, satire, or parody consistent with the public interest; (3) documentary or historical/biographical representations — including some fictionalization — unless the use creates a false impression that the work is an authentic recording in which the individual participated (with a First Amendment savings clause); (4) fleeting or incidental uses; and (5) advertising for works that themselves qualify under the enumerated exceptions. These carve-outs are structurally important for practitioners assessing whether a particular use of a digital replica requires consent.
(E) Nothing in this section shall be construed to impose an obligation or liability on an Internet service provider or its affiliate or subsidiary that solely provides access or connection to or from a website or other information or content on the Internet, or a facility, system, or network not under that provider's control, including transmission, downloading, storing, or providing access, to the extent that the provider is not responsible for the creation of the content that constitutes an unauthorized digital replicaDigital replica"Digital replica" means a computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that is embodied in a sound recording, image, audiovisual work, or transmission in which the actual individual either did not actually perform or appear, or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered. "Digital replica" does not include the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.Va. Code § 8.01-40(A).
Subsection E shields Internet service providers (and their affiliates and subsidiaries) from liability under this section when they merely provide access, connection, transmission, downloading, or storage — so long as the ISP did not create the content constituting the unauthorized digital replica. This is a familiar intermediary safe harbor modeled on federal § 230 principles, narrowly applied to the digital replica context.
(F) No action shall be commenced under this section more than 100 years after the death of such person.
Subsection F extends the post-mortem statute of limitations from 20 years to 100 years after the death of the individual whose attributes are at issue. This is a significant expansion that brings Virginia in line with the most protective right-of-publicity jurisdictions and reflects the reality that AI-generated digital replicas may be created long after an individual's death.