California Passes Digital Replica Legislation as Congress Considers Federal Approach

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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