AB 2602 is designed to ensure transparency in the use of people’s persona by ensuring that they are adequately informed and/or represented during negotiations by either legal counsel or that the agreement is subject to the terms of a collective bargaining agreement. Under this new law, any contract that permits the creation of a digital replica is unenforceable unless it includes a reasonably specific description of how the digital replica will be used (unless the usage is otherwise consistent with the terms of the professional services being offered by such individual) and the person is represented by legal counsel or the contract is subject to a union agreement.
This law applies prospectively to new performances, fixed on or after January 1, 2025. The legislation defines “digital replica” to mean 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.
AB 1836 addresses the use of a digital replica of a deceased person’s name, voice, signature, photograph, or likeness on or in products, merchandise, or goods, or for advertising or selling, or soliciting purchases of the same within 70 years of the personality’s death. This bill makes a person who produces or distribute a digital replica of a deceased personality’s voice or likeness in an expressive audiovisual work or sound recording without prior consent liable in an amount equal to the greater of $10,000 or the actual damages suffered by the person controlling the rights. The provision does not apply to plays, books, newspapers, radio and television programs, or other work of political or newsworthy value because they are not considered products, and their use is protected under the First Amendment.
Last summer, the U.S. Copyright Office published a report proposing a federal law that would protect against unauthorized digital replicas. The report urged consideration of legislation that would balance the interests of producers and subjects. Courts would consider a variety of factors including:
- The purpose of the use, including whether it is commercial;
- Whether the use is expressive or political in nature;
- The relevance of the digital replica to the purpose of the use;
- Whether the use is intentionally deceptive;
- Whether the replica was labeled;
- The extent of the harm caused; and
- The good faith of the user.
Finally, a bipartisan group of Senators introduced the so called No Fakes Act (S. 4875). The proposed federal law looks to hold individuals and online services such as websites liable for damages for producing, hosting, or sharing digital replicas, including AI-generated replicas, of an individual performing in audiovisual works, images, or sound recordings without that person’s consent or participation. Licenses to be valid have to be in writing and include a specific description of the intended use of the digital replica. There are exclusions for those images used in news, public affairs or sports broadcast, documentaries or in commentary or criticism. Similar legislation has been introduced in the House (H. R. 9551).