In late August, the California legislature passed two bills that would limit the creation or use of “digital replicas,” making California the latest state to seek new protections for performers, artists, and other employees in response to the rise of AI-generated content.  These state efforts come as Congress considers the NO FAKES Act (S. 4875), introduced by Senator Chris Coons (D-DE) on July 31, which would establish a federal “digital replication right” over individual’s own digital replicas and impose liability on persons who knowingly create, display, or distribute digital replicas without consent from the right holder.

The first California bill, AB 2602, would impose requirements on personal or professional services contracts that provide for the creation or use of digital replicas, i.e., computer-generated, highly realistic, and readily identifiable representations of an individual’s likeness.  To be enforceable under AB 2602, contract provisions for digital replicas must describe, with reasonable specificity, the intended uses of the digital replica.  Alternatively, the individual depicted must have been represented by either (1) legal counsel who negotiated the license for the individual’s digital replica rights, with clear and conspicuous commercial terms signed or initialed by the individual, or (2) a labor union representing workers who do the proposed work, with terms in their collective bargaining agreement that expressly address uses of digital replicas.  The California bill follows Illinois’ August 9th enactment of Digital Voice & Likeness Act (HB 4762), which contains substantially similar requirements.

The second California bill, AB 1836, would amend California’s Civil Code to prohibit the nonconsensual production or distribution of digital replicas of a deceased personality’s voice or likeness.  Specifically, the bill would require prior consent from the deceased personality’s estate or from surviving family members with the right of consent.  The bill would also create a unique right of action for professional musicians and their record labels or distributors to enforce its provisions.  The passage of AB 1836 follows Tennessee’s late-March enactment of the Ensuring Likeness, Voice, and Image Security Act (“ELVIS Act”) (HB 2091) and Illinois’ enactment of HB 4875 in August.  Both the ELVIS Act and Illinois HB 4875 prohibit the knowing distribution, transmission, or making available of digital replicas without consent and, like AB 1836, provide rights of action for musicians’ record labels and distributors.  In contrast to the Illinois and California approaches, however, the Tennessee ELVIS Act also imposes liability on algorithms, technologies, software, and tools with the “primary purpose or function” of producing unauthorized digital replicas.  We previously summarized the ELVIS Act in greater detail here.

The two California bills represent just a fraction of the AI legislation sent to Governor Newsom’s desk for signing last month, including synthetic content bills such as the Defending Democracy from Deepfake Deception Act (AB 2655), previously summarized here, and a bill (AB 1831) prohibiting AI-generated CSAM, previously summarized here.  The Governor has until September 30 to sign or veto the pending legislation. 

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Follow our Global Policy WatchInside Global Tech, and Inside Privacy blogs for ongoing updates on key AI and other technology legislative and regulatory developments.

Photo of Phillip Hill Phillip Hill

Phillip Hill focuses on complex copyright matters with an emphasis on music, film/TV, video games, sports, theatre, and technology.

Phillip’s global practice includes all aspects of copyright and the DMCA, as well as trademark and right of publicity law, and encompasses the full…

Phillip Hill focuses on complex copyright matters with an emphasis on music, film/TV, video games, sports, theatre, and technology.

Phillip’s global practice includes all aspects of copyright and the DMCA, as well as trademark and right of publicity law, and encompasses the full spectrum of litigation, transactions, counseling, legislation, and regulation. He regularly represents clients in federal and state court, as well as before the U.S. Copyright Royalty Board, Copyright Office, Patent & Trademark Office, and Trademark Trial & Appeal Board.

Through his work at the firm and prior industry and in-house experience, Phillip has developed a deep understanding of his clients’ industries and regularly advises on cutting-edge topics like generative artificial intelligence, the metaverse, and NFTs. Phillip has been recognized as one of Billboard as a Top Music Lawyers.

In addition to his full-time legal practice, Phillip serves as Chair of the ABA Music and Performing Arts Committee, frequently speaks on emerging trends, is active in educational efforts, and publishes regularly.

Photo of Nicholas Xenakis Nicholas Xenakis

Nick Xenakis draws on his Capitol Hill and legal experience to provide public policy and crisis management counsel to clients in a range of industries.

Nick assists clients in developing and implementing policy solutions to litigation and regulatory matters, including on issues involving…

Nick Xenakis draws on his Capitol Hill and legal experience to provide public policy and crisis management counsel to clients in a range of industries.

Nick assists clients in developing and implementing policy solutions to litigation and regulatory matters, including on issues involving antitrust, artificial intelligence, bankruptcy, criminal justice, financial services, immigration, intellectual property, life sciences, national security, and technology. He also represents companies and individuals in investigations before U.S. Senate and House Committees.

Nick previously served as General Counsel for the U.S. Senate Judiciary Committee, where he managed committee staff and directed legislative efforts. He also participated in key judicial and Cabinet confirmations, including of Attorneys General and Supreme Court Justices. Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia.

Photo of August Gweon August Gweon

August Gweon counsels national and multinational companies on new regulatory frameworks governing artificial intelligence, robotics, and other emerging technologies, digital services, and digital infrastructure. August leverages his AI and technology policy experiences to help clients understand AI industry developments, emerging risks, and policy…

August Gweon counsels national and multinational companies on new regulatory frameworks governing artificial intelligence, robotics, and other emerging technologies, digital services, and digital infrastructure. August leverages his AI and technology policy experiences to help clients understand AI industry developments, emerging risks, and policy and enforcement trends. He regularly advises clients on AI governance, risk management, and compliance under data privacy, consumer protection, safety, procurement, and platform laws.

August’s practice includes providing comprehensive advice on U.S. state and federal AI policies and legislation, including the Colorado AI Act and state laws regulating automated decision-making technologies, AI-generated content, generative AI systems and chatbots, and foundation models. He also assists clients in assessing risks and compliance under federal and state privacy laws like the California Privacy Rights Act, responding to government inquiries and investigations, and engaging in AI public policy advocacy and rulemaking.