Have you ever been watching a film and thought: that actor doesn't look quite right? If it was in recent years, you could have been looking at a digital replica: an AI-generated likeness of the performer. This feeling is called the “uncanny valley,” and it arises when a digitally-created image seems close to natural, but not entirely.
While the uncanny valley remains a problem, AI-created images are getting better and better. The rise of AI poses big questions for the entertainment industry, especially given its unique ties to creativity and the human experience. Generative AI models like DALL-E and Midjourney are widely commercially available and already allow us to create art from nothing more than a short text prompt. Now, technology has developed enough for this to be possible with the moving image. But what happens when the rights to a performer's image can be signed away and used in perpetuity? How do we protect artists' freedoms in a rapidly evolving, AI-led digital landscape? Two new bills signed into law by California Governor Gavin Newsom aim to do just that.
What Is Changing?
AB 2606 requires contracts to "specify the use of AI-generated digital replicas of a performer's voice or likeness" and for the performer to be "professionally represented in negotiating the contract". Following provisions introduced by SAG-AFTRA just a year ago that entitled performers to payment (including residuals) for the use of their digital replica represents a significant development. Performers must consent to the use of their likeness, and are now protected from "appearing" in projects they don't want their image used in. The requirement for professional representation also protects newer or unrepresented performers from exploitation.
On the other hand, AB 1836 "prohibits commercial use of digital replicas of deceased performers" unless the consent of that performer's estate is obtained. A wide range of digital media is covered, including films, TV shows, video games, audiobooks, and sound recordings. This bill builds on existing laws that protect against the unauthorized use of a deceased personality's likeness within 70 years of their death. It extends it to digital replicas of that personality.
What Does This Mean for Us?
These new laws reaffirm the need to safeguard performers against exploitative contracts for their digital replicas and show that AI technology is here to stay. While this legislation may appear restrictive at first, especially when a performer requires an agent to enter into a contract with digital replication provisions, it encourages creativity. It ensures that an entertainer's image is protected even after death.
This can also be seen as a direct response to some of the concerns raised by the 2023 SAG-AFTRA strike, where one of the main sticking points was the potential replacement of human performers by their AI-generated digital replicas. A "groundbreaking" proposal by Hollywood studios reportedly sought to gain the rights to background actors' likenesses in perpetuity, without obtaining their consent for each use and only paying them for one day of work. The new legislation gives the provisions previously introduced by SAG-AFTRA legal basis, ensuring that performers are now protected by the law and entitled to compensation for the use of their likeness as if they had worked in person.
The issue of AI replication is also not restricted to the film and television industry, with SAG-AFTRA initiating another strike in July 2024 against a number of video game companies, citing concerns about studios' use of generative AI to replicate performers' voices and likenesses as game characters. With costs of production rising, video game studios have turned to digital replication of actors, proposing to obtain their consent and compensate them fairly if their likeness is used to generate a new performance in-game. However, these terms do not apply to video game doubles and motion capture actors, whose body movements are being used instead of their voices or faces. The passing of these two bills in California is especially significant in this regard, as the state is known as a hub for voiceover and performance capture work. The new legislation will undoubtedly factor into future negotiations. As the strikes are currently ongoing, it remains to be seen whether video game companies will accede to the terms set by SAG-AFTRA, and extend the proposed AI protections to motion capture performers as well.
The example set by Hollywood can be tentatively regarded as a step in the right direction for entertainers, offering protections against the copying of their digital likenesses. Will this include other digital media industries? Only time will tell.
Related Resources:
- Music Labels Join Lawsuit Frenzy Against Artificial Intelligence (FindLaw's Legally Weird)
- Legal (and Moral) Issues in AI-Generated Content (FindLaw's Law and Daily Life)
- Celebrated Writers File Copyright Lawsuit Against AI (FindLaw's Federal Courts)
