In brief
On September 17, 2024, California Governor Newsom signed a pair of bills into law that seek to address the use of AI-generated digital replicas of performers in the state’s world-leading entertainment industry. These new laws will enhance protections for performers’ rights in digital reproductions of their likenesses and may require organizations that create, use, or contract for digital replicas to implement new measures to ensure compliance with the new legislation.
Discussion
The first of the new laws, AB 2602, adds a new section to California’s labor code that would render a contractual provision unenforceable if it meets certain conditions:
- It allows for the creation and use of a digital replica of an individual in place of work the individual would have performed in person;
- It lacks a reasonably specific description of the digital replica’s intended uses (but failure to include this description won’t invalidate the provision if the uses are consistent with the terms of a performance contract);
- The individual wasn’t represented by legal counsel or by a labor union that represents workers who do the proposed work.
All three conditions must be met to affect the enforceability of the provision. Additionally, the law will not impact other contractual provisions or other exclusivity grants within the same provision.
The other new law, AB 1836, amends California’s right of publicity statute to establish a cause of action for the unauthorized use of a digital replica of a deceased personality’s voice or likeness. Under the new law anyone who produces, distributes, or makes available an offending digital replica in an expressive audiovisual work or sound recording can be held liable for up to $10,000 or for actual damages suffered (whichever is greater). AB 1836 exempts certain uses from the proscription, including: news broadcasts, comment, criticism, scholarship, satire, or parody, representations of the individual in a documentary or historical manner, and fleeting or incidental uses. Consistent with other post-mortem rights in California’s right of publicity statute, the digital replica right lasts for 70 years after the death of the personality.
The definition of “digital replica” is identical in both of the new laws and 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.” Notably, AB 1836’s right of action only applies to “deceased personalities,” which refers to people “whose name, voice, signature, photograph, or likeness has commercial value at the time of his or her death.” By contrast, the contractual limitations of AB 2602 apply to all individuals.
Key Takeaways
The legislation represents a compromise between performers unions, who have voiced concerns about the impact of generative AI on professional opportunities, and industry groups, who claim such laws will hamper innovation and inhibit free expression. With the laws’ enactment, California follows Tennessee’s lead, which recently amended its right of publicity statute to apply explicitly to AI media.
Organizations that use AI-generated digital replicas should take steps to ensure compliance with the new laws. Violations of AB 1836 and AB 2602 could lead to civil liability and the unenforceability of contracts, respectively. To avoid these outcomes, businesses should ensure contracts comply with AB 2602’s requirements and that they obtain authorization for any use of any deceased personality’s digital replica that implicates AB 1836.
