A new set of laws may count as a victory for artists in California. Faced with the constant threat of generative AI being used to create unauthorized photos of their image or likeness, the California legislature has come to the defense of celebrities and other content creators.
Although the laws are new (California Governor Gavin Newsom signed the bills into law on September 17 and 29, respectively), the issue is not. In fact, alleged copyright infringement was one of the focal points of last year's artists' strike in Hollywood, involving not only actors on the big and small screens, but also several other categories of artists such as voice actors, video game artists, screenwriters, singers, dancers, presenters, journalists, announcers, and ventriloquists.
A Long History of Legal Battles In a Short Time
The issue was the focus of last year's major walkout by the entertainment industry unions SAG-AFTRA and WGA, and has also been the subject of multiple legal battles. Several of these cases involved journalists or news outlets, including The New York Times, CBC, Postmedia, the Chicago Tribune, and the Denver Post, in disputes against OpenAI and Microsoft. Other lawsuits involved visual artists and image makers such as Getty Images and Visual Artists against Stability AI and others.
Other artists, including renowned comedians and writers, have also sued over the use of their books to train AI without their consent. These include George R. R. Martin, John Grisham, Jodi Picoult, Sarah Silverman, Christopher Golden, and Richard Kadrey. The companies sued are primarily OpenAI and Microsoft, but there are also lawsuits involving other giants such as Google, Meta, Databricks, and NVIDIA.
The New Laws, Explained
Many view the new laws as a major advance in copyright law. While the new legislation does not totally prohibit the use of AI replicas of actors, it allows such images only under certain conditions.
So, what do the laws say?
SB 53
According to California senators, the Transparency in Frontier Artificial Intelligence Act, or TFAIA, aims to achieve transparent, safe, and responsible innovation.
AI developers training and releasing so-called "frontier" models (i.e., large‑scale models) must clearly write, implement, and publish the frameworks under which their AI models operate. The companies must also clearly demonstrate how they incorporate national, international, and industry best practices. The law requires developers to report critical safety incidents to the California Office of Emergency Services. Whistleblowers who disclose violations in good faith are protected from retaliation. The law also imposes penalties for noncompliance, up to $1 million per violation.
AB 1836
This law protects the digital likeness of deceased performers by prohibiting the unauthorized use of their voice or image in new performances without the prior consent of the artist or their heirs for specific uses.
It defines a digital replica as "a computer-generated, highly realistic electronic representation 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 appear, or the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered."
Essentially, it protects a deceased actor’s likeness from being used in new material, as has happend already in some movies such as Star Wars Rogue One.
AB-2602
Broadly speaking, the law prevents the use of a digital replica of an artist:
- When it replaces a new in-person performance
- When the artist has not signed a contract agreeing to the use of a digital replica and detailing the specific conditions
- When the artist has not been represented by a lawyer or union to negotiate the terms of use of that replica
The new legislation does not completely prohibit the use of replicas, but will allow it only under specific conditions, of which the actor must be informed and to which they must expressly consent. Vague terms of use, such as "in all media known or hereafter known," will no longer be permitted.
SAG-AFTRA and the studios had reached an agreement that using a replica of an artist without their consent would not be permitted. But this agreement only covered SAG-AFTRA actors, i.e., those affiliated with the union, leaving all "non-union" actors unprotected. This law now protects them as well.
The new law applies to performance contracts signed on or after January 1 of this year.
Is AI a Curse or a Blessing? Hollywood Itself Can’t Decide.
The use of AI in the arts, like in many other fields, remains a subject of controversy. Despite criticism, parts of the industry welcome its advances with open arms, and we're not just talking about major studios looking to cut costs. Concrete examples that were critically acclaimed and awarded or nominated by the Academy Awards include the accent enhancements in the films Emilia Pérez and The Brutalist. In fact, Andy Brody's performance with an "edited" Hungarian accent even earned him an Oscar.
Independent artists, or anyone not part of the Hollywood elite, may face the most difficulty defending their art. While famous actors and starring roles will rarely be completely replaced by AI in the near future, extras or background actors may struggle to find work.
Whether the new laws will discourage the use of AI in the industry is unknown, but from now on, artists will have to give their express consent for their skills and appearance to be used by AI for specific purposes in California.
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