California enacts new protections against digital replicas created by generative artificial intelligence

California passed several statutes in September aimed at addressing growing concerns around generative artificial intelligence usage across industries. Assembly Bills 2602 and 1836 aim to protect California citizens against unconstrained exploitation of content created by generative artificial intelligence technologies that threatens demand for new performances and the market for licensing posthumous rights of publicity.

Introduced on Feb. 14 and signed by Governor Gavin Newsom on Sept. 17, 2024, Assembly Bill 2602 adds Section 927 to the California Labor Code creating safeguards for grants of rights to create and use digital replicas from individuals' performances. Contracts must now specify how AI-generated digital replicas of an individual's voice or likeness will be used and require the signing party to be professionally represented when granting rights to another party to create digital replicas.

Digital replicas are defined as any highly realistic, computer-generated representations of an individual's voice or likeness embodied in sound recordings, images, audiovisual works, or other transmissions not performed by the depicted individual and which materially alter the fundamental character of an individual's performance or appearance. But any electronic reproductions, remixing, mastering, digital remastering of a sound recording or audiovisual work, or sampling of one sound recording or audiovisual work into another which are authorized by the copyright holder are excluded.

A provision allowing new performances by an individual's digital replica made after Jan. 1, 2025, will be unenforceable if several elements are met. First, the contract allows for the creation and use of a digital replica of the individual's voice or likeness in place of services they would have performed themselves. Second, the contract lacks a reasonably specific description of how the digital replica may be used, though broad descriptions of uses will not render a provision unenforceable if the uses are otherwise consistent with the contract's terms and the character of the recorded performances. Third, the individual granting the rights was not represented by either legal counsel or a labor union with a collective bargaining agreement for the same kinds of services that address the uses of digital replicas. If all three conditions are true, then the provision will be deemed unenforceable as a matter of law.

Section 927's breadth creates interesting interactions in some situations but generally raises more questions than it answers. Exclusions to the digital replicas' definition preserve more traditional applications of technology to improve or enhance existing performances in contexts like music. But it is unclear what it means for an individual to be able to render a performance under the first element. If a digital replica would depict an individual as a guitar virtuoso, and the performer has some ability, but not proficiency with that instrument, would the first element be met?

Courts will need to determine whether the uses of a digital replica are consistent with a contract's broader terms and purpose where there is no reasonably specific description of uses to determine whether the second element is met. It is likely that abuses of digital replicas will go unchecked whenever a digitally replicated individual lacks the means to bring a claim to challenge a contract's scope.

The representation requirement under the third element is also ambiguous as to how involved legal counsel must be or how thoroughly a collective bargaining agreement must cover digital replicas. It is unclear if this element would be met where digital replica rights are negotiated by legal counsel only in an addendum to a broader contract for services, but the individual lacked legal representation when negotiating the broader contract. SAG-AFTRA, the WGA, and the DGA are also now implicitly responsible for policing uses of digital replicas since membership with these labor unions precludes Section 927's protection. This is unsurprising given SAG-AFTRA's continued support of the Bill and the idea that groups closest to the affected individuals would be best suited for directly addressing their concerns around the creation and exploitation of digital replicas. However, the impact of recent strikes suggests that guild protection against technological advancement may come at a high cost to these industries and those working in them.

Related protections around digital replicas of deceased performers were also signed into law on Sept. 17, 2024, through Assembly Bill 1836. This Assembly Bill amends the posthumous right of publicity under California Civil Code Section 3344.1, explicitly prohibiting unauthorized use and exploitation of digital replicas of deceased individuals created from their performances while living and provides a cause of action for the greater of $10,000 or the actual damages suffered by the rights holder. Section 3344.1 adopts the same definition of digital replica as in Section 927 but includes several unique exceptions. Digital replicas may be used in news reporting, comment, criticism, scholarship, satire, or parody and where they are fleeting or incidental. Digital replicas may also be used in documentaries and historical or biographical accounts (even those with some fictionalization), as long as they do not create the impression that the digital replica is an authentic recording. Advertising and promoting any of the above works is also excepted.

The changes to Section 3344.1 complement the addition of Section 927 and together create significant protections against abuses of digital replicas in California. These laws, along with several others in California aimed at regulating AI technologies and mandating transparency about AI tools, underscore the state's commitment to safeguarding consumers from the risks posed by advancing technologies. While generative artificial intelligence continues to enthrall innovators, the real entertainment comes from watching legislators scramble in its wake.