California and artificial intelligence laws

On September 17, 2024, California enacted two laws relating to artificial intelligence and its use in digital replicas.  The two laws relate to employment law (AB 1836) and contracts against public policy (AB 2602).  The unauthorized digital replicas law (AB 2602) goes into effect on January 1, 2025, but AB 1836 does not take effect until January 1, 2026.

Use of likeness: digital replica (AB 1836)

The stated purpose of AB 1836 is to ensure that intellectual property is sufficiently protected from exploitation, but the bill generally focuses on the protection of a deceased personality and will require the consent for someone to produce or distribute a digital replica of that person.  More generally, The bill would make a person who uses a deceased personality’s name, voice, signature, photograph, or likeness, in any manner, 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.

Identical to AB 2602 (described below), “Digital replica” is broadly defined 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.

The bill does include exceptions for certain uses of a digital replica without consent if the use of the digital replica meets any of the following criteria:

1. The use is in connection with any news, public affairs, or sports broadcast account.
2. The use is for purposes of comment, criticism, scholarship, satire, or parody.
3. The use is a representation of the individual as the individual’s self in a documentary or in a historical or biographical manner, including some degree of fictionalization, unless the use is intended to create, and does create, the false impression that the work is an authentic recording in which the individual participated.
4. The use is fleeting or incidental.
5. The use is in an advertisement or commercial announcement for a work described in subclauses (I) or (IV).

Similar to AB 2602, AB 1836 also expressly excludes from the definition of “digital replica” the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.  For example, if you wished to use a segment of a song or use a bass line from a song for a new song, you would need permission from the copyright owner, but that new song would not be a “digital replica” of the original.   

Unauthorized Digital Replicas (AB 2602)

AB 2602 is designed to protect actors and artist and give them more control over their digital replica / likeness.  The bill provides that a provision 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 all of the following conditions:

1. The provision allows for the creation and use of a digital replica of the individual’s voice or likeness in place of work the individual would otherwise have performed in person.
2. The provision does not include a reasonably specific description of the intended uses of the digital replica, unless the uses are consistent with the terms of the contract for the performance of personal or professional services and the fundamental character of the photography or soundtrack as recorded or performed.  
3. The individual was not represented in any of the following manners:
   1. By legal counsel who negotiated on behalf of the individual licensing the individual’s digital replica rights, and commercial terms are stated clearly and conspicuously in a contract or other writing signed or initialed by the individual.
   2. By a labor union representing workers who do the proposed work, and the terms of their collective bargaining agreement expressly addresses uses of digital replicas. 

While the bill does provide protection for the unanticipated uses of an actor’s or artist’s digital replica, it still permits represented parties to specifically include certain of these rights into a contract.  

Identical to AB 1836, “Digital replica” 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, the bill expressly excludes from the definition of digital replica the electronic reproduction, use of a sample of one sound recording or audiovisual work into another, remixing, mastering, or digital remastering of a sound recording or audiovisual work authorized by the copyright holder.