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.

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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 experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal…

Nick Xenakis draws on his Capitol Hill experience to provide regulatory and legislative advice to clients in a range of industries, including technology. He has particular expertise in matters involving the Judiciary Committees, such as intellectual property, antitrust, national security, immigration, and criminal justice.

Nick joined the firm’s Public Policy practice after serving most recently as Chief Counsel for Senator Dianne Feinstein (D-CA) and Staff Director of the Senate Judiciary Committee’s Human Rights and the Law Subcommittee, where he was responsible for managing the subcommittee and Senator Feinstein’s Judiciary staff. He also advised the Senator on all nominations, legislation, and oversight matters before the committee.

Previously, Nick was the General Counsel for the Senate Judiciary Committee, where he managed committee staff and directed legislative and policy efforts on all issues in the Committee’s jurisdiction. He also participated in key judicial and Cabinet confirmations, including of an Attorney General and two Supreme Court Justices. Nick was also responsible for managing a broad range of committee equities in larger legislation, including appropriations, COVID-relief packages, and the National Defense Authorization Act.

Before his time on Capitol Hill, Nick served as an attorney with the Federal Public Defender’s Office for the Eastern District of Virginia. There he represented indigent clients charged with misdemeanor, felony, and capital offenses in federal court throughout all stages of litigation, including trial and appeal. He also coordinated district-wide habeas litigation following the Supreme Court’s decision in Johnson v. United States (invalidating the residual clause of the Armed Career Criminal Act).

Photo of August Gweon August Gweon

August Gweon counsels national and multinational companies on data privacy, cybersecurity, antitrust, and technology policy issues, including issues related to artificial intelligence and other emerging technologies. August leverages his experiences in AI and technology policy to help clients understand complex technology developments, risks…

August Gweon counsels national and multinational companies on data privacy, cybersecurity, antitrust, and technology policy issues, including issues related to artificial intelligence and other emerging technologies. August leverages his experiences in AI and technology policy to help clients understand complex technology developments, risks, and policy trends.

August regularly provides advice to clients on privacy and competition frameworks and AI regulations, with an increasing focus on U.S. state AI legislative developments and trends related to synthetic content, automated decision-making, and generative AI. He also assists clients in assessing federal and state privacy regulations like the California Privacy Rights Act, responding to government inquiries and investigations, and engaging in public policy discussions and rulemaking processes.