Preventing Abuse of Digital Replicas Act

(4) In a civil action brought pursuant to paragraph (1)(A), the court shall apply a rebuttable presumption that the use is likely to cause confusion, or to cause mistakes, 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, if—

(A) the claim asserted under paragraph (1)(A) is for a use of a digital replica by a person on or in connection with any goods or services, or any container for goods; and

(B) the person bringing the civil action expressly invokes the rebuttable presumption in a pleading.

(5) The rebuttable presumption in paragraph (4) shall not be available 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—

(A) for any claim asserted under paragraph (1)(A) for indirect liability;

(B) if the use is in an expressive work or in promotional material for that expressive work; or

(C) if the use is otherwise protected by the First Amendment to the Constitution of the United States.

(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 expressly invokes the rebuttable presumption in paragraph (4) in a pleading.

(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 a computer-generated representation that is identical to, or substantially indistinguishable from, 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, or likeness of the subject person, which 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; and

(ii) 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).