On September 17, 2024, California Governor Gavin Newsom signed into law two key bills, AB 1836 and AB 2602, aimed at enhancing protections for performers, both deceased and living, in response to the increased adoption of generative artificial intelligence (AI).
Lawmakers introduced the bills in response to growing concerns about AI’s ability to create and facilitate the commercial exploitation of highly realistic “digital replicas” (sometimes called deepfakes) of a performer’s voice or visual likeness in film, television and music. AB 1836 prohibits the use of digital replicas of deceased performers without the consent of such performer’s estate. AB 2602 bars contract provisions that enable the use of digital replicas without the performer’s informed consent and proper representation. These acts become effective on January 1, 2025.
Both bills garnered support from unions and industry organizations, including SAG-AFTRA, which have been advocating for stronger protections against the increasing use of AI-generated replicas.
Central to each bill is the concept of a “digital replica,” which is defined by AB 1836 as,
“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 replicas” exclude electronic reproductions, samples, remixes, remasters and digital remasters of sound recordings and audiovisual works that are authorized by the copyright holder.
A summary of these bills is as follows:
AB 1836:
- Overview: AB 1836 expands California’s existing protections against unauthorized commercial uses of a deceased personality’s name or likeness (California Civil Code § 3344.1). The bill amends Section 3344.1 to establish a cause of action on behalf of injured rightsholders against persons who produce, distribute or otherwise exploit the digital replica of a deceased personality’s voice or likeness without specified prior consent. Violators are liable to the injured party in an amount equal to the greater of $10,000 or the actual damages suffered by the rightsholder.
- Exemptions: The bill exempts specified uses that are generally protected under the First Amendment, including the use of digital replicas (i) in connection with news reports, (ii) for purposes of comment, criticism or parody, (iii) in a fleeting or incidental manner and (iv) for historical or biographical purposes (so long as the use does not falsely imply that the replica is an authentic recording of the personality).
- Bottom Line: AB 1836 modernizes California’s post-mortem right of publicity by addressing the capabilities of generative AI, helping to ensure that performers’ legacies cannot be perpetually recycled or coopted without consent and compensation.
AB 2602:
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Overview: Entertainment contracts often include broad grant of rights clauses, allowing licensees to secure perpetual rights to use a performer’s image and likeness. AB 2602 addresses the enforceability of such contractual provisions that permit the use of AI-generated replicas in lieu of the real performer.
The legislation builds on an existing body of law prohibiting employers from imposing contract terms that are known to be illegal or against public policy. Under the new bill, a contract clause that permits an employer’s use of an AI version of a performer’s voice or likeness will be deemed unenforceable if all of the following conditions are met:
- The use replaces work that the performer could have done in person;
- The provision lacks a reasonably specific description of the intended use of the digital replica (provided that usage deviates from already agreed-upon terms); and
- The performer did not have legal or union representation when the deal was made.
- Exceptions: While AB 2602 imposes strict limits on the use of AI-generated digital replicas, there are exceptions. For instance, the failure to include a reasonably specific description of the intended use of a digital replica does not render the provision unenforceable so long as the uses are consistent with the contract terms for the performance and the fundamental character of the photography or soundtrack as recorded or performed. Furthermore, if a performer knowingly agrees to specific terms allowing for the use of their digital likeness, these clauses can still be enforceable, provided they are clear and the performer was adequately represented. Additionally, the remainder of a contract will be upheld despite the inclusion of a provision deemed unenforceable under this bill, and the rule does not “impact, abrogate, or otherwise affect any exclusivity grants contained in, or related to” such unenforceable provision.
- Bottom Line: With the introduction of digital replicas, the impact of unrestricted grants of rights provisions on performers’ careers can be profound. AB 2602 aims to protect performers from inadvertently relinquishing these key rights, ensuring that their digital presence cannot be exploited in lieu of their actual work without due consent. Producers, directors, and studios must now ensure that contracts involving AI and digital replicas are specific, transparent, and negotiated with proper representation.
With the signing of AB 1836 and AB 2602, California has established some of the most comprehensive protections for performers in the face of AI advancements. Stakeholders should pay close attention to the use of digital replicas moving forward and the parameters around such usages in entertainment contracts.
These two enacted bills come on the heels of the recently introduced federal NO FAKES Act, which would confer rights regarding digital replicas on a nationwide scale. And just days later, on September 19, Governor Newsom signed three additional bills designed to address ethical concerns around the use of generative AI. SB 942 requires generative AI platforms to provide provenance disclosures in such generated content that, while imperceptible to humans, can be identified using software. SB 926 makes it a crime to create a distribute sexually explicit deepfakes of real individuals, and SB 981 requires social media platforms to establish ways for users to report sexually explicit deepfakes of themselves and to enable timely blocking and removal. And that’s not all; more AI-related legislation is pending on the Governor’s desk, including SB 1047, the Safe and Secure Innovation for Frontier Artificial Intelligence Models Act.