Legal Dilemmas of Digital Replicas in Creative Works

California recently passed two new AI laws that aim to protect individuals from the unauthorized creation of digital replicas. Scott Hervey and James Kachmar discuss these laws and their implications for the media industry on this episode of The Briefing.

Watch this episode on the Weintraub YouTube channel here.

Show Notes:

Scott:
Within the last few weeks, California’s governor, Gavin Newsom, signed into law two new AI bills that are intended to impact the media business. Both of these bills were championed by SAG-AFTRA and were touted as giving individuals more agency over the use of their voice and likeness. Do these bills really deliver on their promise, or are they duplicative? Or might they just create a bunch of confusion with other existing or pending bills?

I’m Scott Hervey from Weintraub Tobin, and today I’m joined by James Kachmar. We’ll be discussing A/B 1836 and S/B 2602 on today’s episode of The Briefing. James, thanks for joining me today. You and I have had a number of these similar conversations. You and I talked about the Elvis Bill, and we talked about the No Fakes Act, and now we’re talking about California’s movement in this space. It’s good to have you here to unpack this with me.

James:
Thanks for having me, Scott.

I think as all our as you, of course, know this is an incredibly relevant topic with the explosion of AI and deep fake technology that we’re seeing out there. I think we’re going to be excited to unpack this new legislation.

Scott:
Yeah, I agree with you. Let’s start with ABA 1836. So this bill amends Section 3344.1 of the Civil Code. And all of us lawyers that work in the media business are very much aware of 3344, which is basically California’s right of publicity statute, and 3344.1, which was the Fred Astaire Act, governs the protection of the rights of publicity for deceased celebrities and personalities against their unauthorized commercial exploitation. So A. B. 1836 is essentially about updating the law to account for the rise of digital technology and its impact on the likeness rights of deceased celebrities. So people who’ve passed away, but whose name, voice, image, and/or likeness still holds commercial value. So think of famous actors, musicians, or public figures. This amendment directly addressed the growing use of digital replicas, where advanced technologies used to replicate a deceased person’s voice or likeness in media like films or advertisement or even new music.

James:
That’s right, Scott. Section 3344.1 already provided protection for the use of a deceased celebrity’s name, voice, and likeness in connection with products, merchandise, or goods, or for the purposes of advertising or selling or soliciting purchases of products, merchandise, goods, and services. Ab 1836 goes a step further, especially in light of the recent AI technology. Let’s talk more about digital replicas. This seems to be the heart of the amendment, and it’s something that could really impact the entertainment industry.

Scott:
Yeah, I agree. The act defines a digital replica as a computer-generated, highly realistic electronic representation definition 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 appeared appear or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered. This definition is not really that much different than what we’ve seen in the no fakes act. A digital replica does not include, however, the electronic reproduction use of a sample of sound recording or audiovisual work into another. So remixing, mastering or digital remastering of a sound recording or audiovisual work that’s authorized by the copyright holder.

James:
Right. And the bill now provides that any person who produces, distributes, or makes available the digital replica of a a deceased personality’s voice or likeness in an expressive audiovisual work or sound recording without prior consent is going to be liable to the 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.

Scott:
Yeah. I want to point out something that you mentioned because this is where this bill deviates from what existed in 3344.1, which really focused on advertisements and the sale of products and services. This also governs the use of deceased personalities, voice and likeness, in an expressive audiovisual work. So not necessarily an advertisement for a product or service or in connection with the sale of a product or service. There are some exceptions to this. For instance, if the use of the digital replica in an expressive work is for news, use, or is for public affairs or is for sports broadcast or parody, the consent is not required. We saw that in the No Fakes Act as well. Similarly, if the digital replica is used in a documentary or for colony purposes, and it’s clear that the deceased personality did not actually participate. That use is typically allowed without consent.

James:
Right. And the restriction on the uses of a digital replica a deceased celebrity is broader than the general prohibitions on the uses of a deceased celebrity’s actual voice or recording. We will call that the analog likeness. Prior to this bill, the prohibition only covered uses in connection with the sales or advertising of the sell of goods and services. There was a specific carve-out for the use of a deceased celebrity’s analog likeness in creative works, including reading audiovisual works. Why is it that what’s permissible with a lookalike or soundalike is not permissible with a digital replica? Either way, the estate of the celebrity isn’t compensated. And how is this prohibition on the use of a digital replica not an imposition on First Amendment creative speech rights?

Scott:
Those are all really good points. And we talked about that in detail when we talked about the Tennessee’s Elvis Act, because that prohibited the use of a digital audio replica, but it also had an impact on soundalikes. And for a long time, there’s been a business of celebrity impersonators, soundalikes, lookalikes, and that generally has been allowed. I don’t know how they balance this, James. And I don’t know why what’s allowable with an analog likeness is is not allowable if you morph that analog likeness into a digital replica. I can understand how this addresses a concern of the use of the likeness of a deceased celebrity in a new television program. But there’s nothing that prohibits another actor who may look like that deceased celebrity or who is made up to look like that deceased celebrity to appear in that work. Just think about the Crown. It had an actress portraying Princess Diana. Princess Diana’s estate did not get compensated for that program. Why is it allowable to have an actor portray Princess Diana in the last season of The Crown? But it wouldn’t be allowable for the producers to use a digital replica of Princess Diana.

James:
I mean, I know it’s a bad example because this is a California statute, and it only impacts California residents. But nonetheless, I think we could go with my hypothetical and see where maybe it doesn’t make a whole lot of sense unless there’s something I might be missing. What do you think?

Scott:
Well, Scott, I think those are all valid points. But given California and Hollywood being the center of the entertainment industry, I could see a lot of out-of-state personalities coming in to take advantage of this act for those media that are being produced or created here in California. I think the issues you’ve identified are where courts are going to struggle with as we start to see cases filed after this law goes into effect. I think they’re going to have to take it on a case-by-case basis, and I think they’re going to struggle with a lot of the very issues you’ve identified. Why is it It’s limited in one instance, but not the other?

James:
Yeah. Just another, 3344, it only applies to celebrities that were domiciled in California at the time of their death. Marilyn Monroe, for example, who was domiciled in New York at the time of her death, 3344.1 does not apply to her, and it didn’t apply to her. And so the amendment to 3344.1 wouldn’t apply to her either. So there could be a digital replica, unless New York imposes a similar statute. There could be a digital replica of Marilyn Monroe used in a new television series, and it most likely would not violate this provision, assuming that the producers were not located in California either, domiciled in California. So you’re right. I think we’re going to see a lot of courts struggling with how to apply this. Who is bound by it? Would distributors who have a business in California or who provide the content to California residents, must they adhere to this statute as Well, I guess we’ll see. We’ll see. What happens if a No Fakes Act passes, which is federal legislation, which somewhat addresses this point? Are we going to have two countervailing statutes that are different in certain ways. Let’s move on to AB 2602.

Scott:
So this bill introduces due protections for individuals in California by regulating the use of digital replicas of a person’s voice or likeness in personal or professional services contracts. So think actor contracts that are not SAG after actors. So this bill adds Section 927 to the labor code, and it’s effective January 1, 2025. The bill is not going to be applicable retroactively.

James:
That’s right, Scott. And the bill governs provisions and contracts related to the use of digital replicas that we’ve been discussing of an individual’s voice or likeness in personal or professional services agreements, specifically for situations where a digital replica is used in place of the individual’s actual presence or performance.

Scott:
The statute says that a contract provision allowing the use of a digital replica in place of the actual individual would be unenforceable. Unenforceable as being against public policy unless the following conditions are met. One, the provision allowing for that use must allow the creation and use of the digital replica to replace work the individual would otherwise perform in person. The provision must include a reasonably specific description of the intended use of the digital replica. However, the failure to provide this description does not make the provision in the contract unenforceable if the use aligns with the fundamental terms of the original contract. Three, the individual must be represented by either a lawyer who negotiated on their behalf and clearly outlined the commercial terms in writing or a labor union that expressly addresses the use of digital replicas in their collective bargaining agreement. Think SAG, the most recent SAG contracts.

James:
Right. And the bill also clarifies that it does not affect the other provisions of a contract, such as exclusivity rights. These are still going to be enforceable even if the digital replica provisions are not enforceable.

Scott:
So this bill seems to codify certain provisions SAG obtained in its negotiations with the studios last year. Since the SAG Agreement terms are only applied to SAG actors, this bill would apply to everybody else. Now, this bill seems to reflect the growing concern in the entertainment and the technology industries about the use of AI-generated content and its impact on jobs. However, this bill only covers California, and it does nothing to prohibit similar business practices outside the state. Also, this bill only addresses the use of a digital replica, but it does not address the use of that individual’s like the creation of an entirely new digital avatar, which was addressed in the SAID contract negotiations. So I don’t know, I guess we’ll see, we’ll really see the impact of this bill, maybe with non-union jobs that are shot in California, where California actors are hired. I don’t know. I see this as being maybe covering a pretty small footprint. What about you, James?

James:
Right. I agree, Scott. I mean, it may not have a lot of applicability out there, and it’s going to be interesting to see, really, does it provide any coverage that isn’t already provided under the SAG contract? So once again, we’ll just have to wait and see how it’s enforced.

Scott:
That’s all for today’s episode of The Briefing. Thanks to James Kachmar for joining me today. And thank you, the listener or viewer, for tuning in. We hope you found this episode informative and enjoyable. And if you did, please remember to subscribe, leave us a review, and share the episode with your friends and colleagues. And if you have any questions about the topics we covered today, please leave us a comment.