Highlights
- ESA says the No Fakes Act could expose studios to lawsuits over character resemblance claims.
- Game tools like avatar creators may be treated as legally risky under the bill.
- Assembly Bill 1921 raises separate concerns over forced offline conversion or refunds for shut-down games.
With the Senate Judiciary Committee scheduled to review the No Fakes Act on June 11, 2026, the video game industry has emerged as one of its few organized opponents. The Entertainment Software Association (ESA) sent a formal letter to Senators on the Senate Judiciary Committee, Chuck Grassley (Chairman) and Dick Durbin (Ranking Member) on June 9. In the letter, ESA president and CEO, Stanley Pierre-Louis, argued that the bill creates "a level of uncertainty that poses a real threat to existing games and to the future of video game development in the United States."
The ESA’s central objection targets the bill’s definition of “digital replica.” It argues that the definition is broad enough to expose studios to lawsuits from anyone who claims a game character resembles them, even by coincidence.
The association represents an industry supporting over 250K U.S. jobs and $65.5 billion USD in gross domestic product (GDP) annually. Realistic characters already found in games like Call of Duty, Tomb Raider, Red Dead Redemption, and The Last of Us sit at the heart of that concern.
Why the No Fakes Act Could Put Game Tools at Legal Risk
A second fault line involves development tools. Avatar builders and character customization features common in mainstream games could face liability under the current bill’s language.
ESA president and CEO Stanley Pierre-Louis wrote that the draft “fails to adequately differentiate between tools and services built specifically to enable the creation of harmful digital replicas.” He added that it also fails to account for the potential for third-party abuse of “innovative, multi-purpose, and otherwise legitimate tools.”
The ESA has proposed targeted amendments but says some bill supporters have resisted accommodating those changes.
The No Fakes Act, originally introduced in 2024, failed to pass before the U.S. elections. It was reintroduced in the Senate in May 2026 with bipartisan support. SAG-AFTRA frames the legislation as the first federal consent-based framework protecting individuals from unauthorized voice and image cloning, with backing from the AFL-CIO, Google, IBM, OpenAI, and the Motion Picture Association. It also includes a mandatory takedown process that would not require hiring lawyers or going to court.
Exceptions cover news, commentary, satire, parody, and documentary use.
California's AB 1921 Opens a Separate Legislative Front
The pressure on developers extends beyond Washington.
California’s Assembly Bill (AB) 1921 would require publishers to shut down server-connected games to either maintain infrastructure indefinitely or rebuild titles to function offline. Alternatively, they would be required to issue full refunds to all players, regardless of when they last played. Pierre-Louis argued the bill ignores the sustained cost of live-game infrastructure, moderation teams, including servers, and licensed music and likeness rights that may not be extendable in perpetuity.
In-game studio economics make this near-impossible. Pierre-Louis argued that most U.S. game companies operate with fewer than 10 employees and cannot absorb permanent operational obligations on legacy titles. Every dollar spent maintaining outdated systems is a dollar not spent building new ones, and the bill creates an unprecedented consumer product category with no parallel in other technology or entertainment sectors.
SAG-AFTRA president Sean Astin and national executive director and chief negotiator Duncan Crabtree-Ireland, in an open letter to members dated June 8, called the moment urgent. "Deepfakes can ruin lives," the letter read, urging members to sign a congressional letter ahead of the June 11, 2026, hearing.
The ESA counters that it supports protecting individuals from genuine harm but that the bill, as currently written, would devastate an industry built entirely on fictional digital worlds.
