New legislation in California, bills AB 1836 and AB 2602, aims to protect the rights of performers, both living and dead, from having their digital likenesses being used without authorization.
In the entertainment industry, generative AI has become an elephant in the room, ever-present and impossible to ignore. As these technologies continue to improve, studios and production companies will no doubt implement them to cut costs and improve efficiency. For example, Lionsgate recently announced a partnership with Runway AI, a leader in the generative AI space. In this new landscape, where studios opt to use digital replicas instead of hiring real people, performers face the risk of being displaced.
In the face of such rapid technological progress, the state of California and Governor Gavin Newsom passed new legislation, AB 1836 and AB 2602, in September 2024. These laws aim to protect performers from unauthorized use of their likenesses, underscoring California’s ongoing commitment to regulating artificial intelligence.
In this article, we’ll break down both of these AI protection bills and explore their broader implications for the entertainment industry.
California’s AB 1836 bill aims to curb the potential misuse of a deceased performer’s likeness through generative AI. As these digital replicas become easier to create, one could theoretically recreate a performer’s face, voice, and even gestures for their own personal gain. This raises ethical concerns regarding the posthumous rights of iconic figures. Imagine a scenario where Elvis Presley or Michael Jackson are digitally resurrected for a new film, with the producers leveraging their likeness without the estate’s consent. Bad actors could potentially tarnish a performer’s legacy while profiting off their name.
AB 1836’s primary provision is actually quite straightforward: producers must obtain consent before using AI-generated replicas of deceased performers. By expanding the state’s Right of Publicity, this legislation closes a crucial loophole that left certain posthumous rights unprotected. By extending the performer’s overall likeness as a form of intellectual property, this legislation empowers the family or estate to oversee how the deceased performer’s likeness is managed digitally.
Sponsored by SAG-AFTRA, this bill has broad implications for studio and independent productions. Filmmakers must now account for these legal considerations when using AI replicas of iconic actors or musicians who have passed away. While it does limit some creative possibilities, it introduces a more ethical framework for generative AI technology. It also ensures that estates retain control over a performer’s digital legacy and that their likeness isn't easily exploited for profit.
As mentioned above, AB 1846 drew significant support from prominent organizations such as SAG-AFTRA, the California Labor Federation, and the Recording Academy, to name a few. In passing this bill, California has underscored its commitment to protecting creative rights in the age of AI, setting a precedent that hopefully inspired similar legislation nationwide.
Bill AB 2602 introduces key protections for performers living in California, particularly those not currently covered by a labor union. Before, less-established performers were at risk of having their digital likenesses used without appropriate consent. Performers lacking experience and industry know-how could be signing away their digital rights in perpetuity without even realizing it.
Per the legislation, performers must be fully aware of how their digital likeness will be used commercially. Therefore, the bill mandates that any contracts involving the use of a digital replica must provide a detailed description of its intended use, ensuring informed consent.
Additionally, it mandates that performers must have legal counsel or a union representative present during contract negotiations. This requirement prevents studios from burying malicious AI permissions within complex contract language. Both of these requirements ensure that performers fully understand the contract terms before signing their digital rights away.
Similar to AB 2602, this legislation was spearheaded by SAG-AFTRA. In fact, the legislation includes similar language to the historic contract the union negotiated with AMPTP. In a statement, SAG-AFTRA’s general counsel, Jeffrey Bennett, explained how their goal was “to make sure people who aren’t currently covered by one of our agreements are protected” (via Variety). In particular, the passing of this legislation prevents employers from exploiting up-and-coming performers who aren't covered by union contracts. By requiring transparency in the contracts, this law will hopefully lead to a more ethical framework for using generative AI in the entertainment industry.
The passing of AB 1386 and CB 2602 mark an important chapter in the ongoing struggle between artificial intelligence and workers in the entertainment industry. By explicitly requiring consent and transparency, California has demonstrated its commitment to safeguarding the rights of both living and deceased performers.
Beyond the entertainment industry, California’s approach could also serve as a model for regulations that protect workers from contributing to their own job displacement. As the world continues to adapt to this technological revolution, these laws are a reminder that technology should ultimately empower workers, not exploit them.