IP Law Daily, PUBLICITY RIGHTS NEWS: Governor Newsom signs two bills to protect performers’ digital audio and visual likenesses, (Sep 18, 2024)

By Cheryl Beise, J.D.

One measure requires informed consent by performers prior to use of their digital replicas, and the other provides enhanced protections to the voice and likeness rights of deceased performers.

California Governor Gavin Newsom on September 17 signed two bills to help actors and performers protect their digital likenesses in audio and visual productions, including those who are deceased. This legislation will help ensure the responsible use of Artificial Intelligence (AI) and other digital media technologies in entertainment by giving workers more protections. One measure requires informed consent by performers prior to use of their digital replicas, and the other provides enhanced protections to the voice and likeness rights of deceased performers.

Newsom signed the bills at the Los Angeles headquarters of SAG-AFTRA, which applauded the measures as protecting union members and all performers. “It is a momentous day for SAG-AFTRA members and everyone else, because the A.I. protections we fought so hard for last year are now expanded upon by California law thanks to the Legislature and Gov. Gavin Newsom," said SAG-AFTRA President Fran Drescher.

“We continue to wade through uncharted territory when it comes to how AI and digital media is transforming the entertainment industry, but our North Star has always been to protect workers. This legislation ensures the industry can continue thriving while strengthening protections for workers and how their likeness can or cannot be used,” Newsome said in a news release.

AB 1836—Use of likeness: digital replica—introduced by Assemblymember Rebecca Bauer-Kahan (D-Orinda), prohibits commercial use of digital replicas of deceased performers in films, TV shows, video games, audiobooks, sound recordings and more, without first obtaining the consent of those performers’ estates. Existing law establishes a cause of action for damages on behalf of specified injured parties for the unauthorized use of a deceased personality’s name, voice, signature, photograph, or likeness in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services within 70 years of the personality’s death. The new law makes a person who produces, distributes, or makes available the digital replica of a deceased personality’s voice or likeness in an expressive audiovisual work or sound recording without specified prior consent liable to any injured party in an amount equal to the greater of $10,000 or the actual damages suffered by a person controlling the rights to the deceased personality’s likeness, except as prescribed. The bill 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 2602—Contracts against public policy: personal or professional services: digital replicas—introduced by Assemblymember Ash Kalra (D-San Jose), requires contracts to specify the use of AI-generated digital replicas of a performer’s voice or likeness, and the performer must be professionally represented in negotiating the contract. The law adds a new section to the California Labor Code provides that in an agreement between an individual and any other person for the performance of personal or professional services is unenforceable only as it relates to a new performance, fixed on or after January 1, 2025, by a digital replica of the individual if the provision meets specified conditions relating to the use of a digital replica of the voice or likeness of an individual in lieu of the work of the individual. This law defines “digital replica” the same as AB 1836.

Last year, Governor Newsom signed an executive order laying out how California’s approach to emerging AI technologies will focus on shaping the future of ethical, transparent, and trustworthy AI, while remaining the world’s AI leader. California is home to 32 of the world’s 50 leading AI companies, high-impact research and education institutions, and a quarter of the technology’s patents and conference papers, according to the news release.

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