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California Passes Bills Protecting Actors, Performers From AI Replicas

September 24, 2024

One of the California bills deals with protecting actors and other performers in the writing of contracts when it comes to AI uses while the other is focused on protecting deceased performers who may be digitally replicated or imitated long after their death.

Gov. Gavin Newsom has signed two bills into law that set out to protect actors and performers from artificial intelligence replicas of their likeness or voice being used without their consent.

Such protections were at the forefront of labour negotiations during the monthslong strike last year by SAG-AFTRA, or the Screen Actors Guild and the American Federation of Television and Radio Artists. Several performers, from musicians to actors, have spoken out against AI versions of their image or voice being used without their consent.

Last year, Scarlett Johansson took legal action against an AI app that posted an ad appearing to show her speaking from behind the scenes of “Black Widow” — but which actually was just an AI-generated version of her — while Tom Hanks issued a warning over Instagram just last month about AI ads using his voice and image, Variety reports.

“There are multiple ads over the internet falsely using my name, likeness and voice promoting miracle cures and wonder drugs. These ads have been created without my consent, fraudulently and through AI,” Hanks wrote.

Last year, the AI issue became a sticking point during SAG-AFTRA’s months of labour negotiations as some union members felt the safeguards established in the final deal reached with the Alliance of Motion Picture and Television Producers, which represented employers, did not go far enough in protecting performers, the Associated Press reported.

“If we set aside the AI issue, it would have been ratified by 99% of members probably,” SAG-AFTRA National Executive Director and Chief Negotiator Duncan Crabtree-Ireland told AP at the time.

“Someone else’s unpaid digital puppet”

SAG-AFTRA issued a statement applauding Newsom’s signing of the two new laws, AB 1836 and AB 2602, which were introduced by Assembly member Ash Kalra (D-San José) and Assembly member Rebecca Bauer-Kahan (D-Orinda), respectively.

“No one should live in fear of becoming someone else’s unpaid digital puppet,” Crabtree-Ireland said in the statement.

The union played a major role in bringing forth the legislation, according to SAG-AFTRA General Counsel Jeffrey Bennett.

“We basically drafted the bills with these offices,” Bennett said, describing the potential for “digital clones” as “an immediate threat to what our members do.”

SAG-AFTRA President Fran Drescher, best known for her leading role on “The Nanny,” spoke alongside Newsom in a post to the governor’s X account. She sat next to the governor as he signed the bills at the union’s Los Angeles headquarters on Monday.

“Your actions today are going to speak to people all over the world that are feeling threatened by AI,” Drescher said. “And even though there are smart people that come up with these inventions, I don’t think they think it all the way through of what will happen when humans don’t have a place to make a living and continue to feed their families.”

In a statement from his office, Newsom said the legislation looks to offer labour protections while still nurturing the entertainment industry and how it’s changing.

“We continue to wade through uncharted territory when it comes to how AI and digital media is transforming the entertainment industry, but our North Star has always been to protect workers,” he said in the statement.

Meanwhile, as home to Silicon Valley, California is also having to balance the needs of its ever evolving tech industry — including AI. The state is home to 32 of the world’s 50 leading AI companies, according to the statement from Newsom’s office, which mentions goals like reducing traffic and addressing the homelessness crisis as just some potential applications of it.

AB 2602: Protecting performers in contracts

AB 2602, reintroduced this year by Assembly member Kalra, requires labour contracts to specify if AI-generated replicas of a performer — imitating their likeness or voice — are being used. It also mandates that the performer is represented by a union or lawyer in such contracts. SAG-AFTRA has said the law is “the first of its kind in the United States.”

Meanwhile, Kalra has said it extends AI protections to performers who may not currently have such legal protections.

“Union-represented actors may now have a collective bargaining agreement that includes safeguards against AI, but other performers like voice actors for media such as audio books, video games, and more, deserve the same legal safeguards,” Kalra said in a statement earlier this year.

According to Bennett, the law is intended to protect against contracts with issues he has seen many times as an attorney — overly broad language that sets out to use someone’s likeness “in any and all mediums” or “in perpetuity,” meaning forever. So AB 2602 can also be a safeguard, for instance, for actors who are just starting out, he said.

“You have to know what you’re getting into before you say ‘OK,'” Bennett said.

Earlier this summer, video game actors with SAG-AFTRA began going on strike over uses of AI, with the union announcing they would continue protests later this week outside Disney Character Voices in Burbank.

AB 1836: Handling of digital replicas of an artist after their death

The other bill, AB 1836, was introduced by Assembly member Bauer-Kahan and bans the commercial use of digital replicas of performers who are deceased in TV shows, films, video games and more — without first getting the consent of the estates representing the late performers.

It updates current legislation and removes certain exemptions, such as for TV and film, that currently exist.

Bauer-Kahan has described the law as a necessary measure given how new technology has changed things and allowed entertainers, or their performances, to be recreated long after they have passed.

“It is now possible to create new performances of artists even after their death,” Kahan said in a statement from the governor’s office, saying artists “deserve protections that extend beyond their life to ensure they control their own likeness and profit from it.”

Bennett said SAG-AFTRA has long been looking to address the issue of artists being digitally replicated after their death.

Just as with so many other fields of work, the entertainment industry has grappled with establishing how and when to regulate the use of AI — a balance of facing the realities of the digital age while still protecting workers against unfair, even exploitative practices.

The use of deep fakes, specifically the non-consensual placement of peoples’ likeness on fake adult videos, stems back to at least 2018 and became a more broadly known phenomenon in 2020, according to the MIT Technology Review. At that time, Bennett said, this ability to basically digitally clone someone was not being thought of in a more wide-reaching sense, like how it would impact the broader entertainment industry.

“People weren’t thinking about it in terms of performance replacement,” Bennett said, adding that the possibilities go far beyond what was being seen then. “It’s going to start encroaching on people’s jobs.”

Last year, an AI-generated song using voices replicating that of Drake and The Weeknd went viral. Months later, an AI-generated robocall impersonating President Joe Biden surfaced and led to concerns over misinformation in the upcoming election.

Bennett points to those specific incidents as turning points in how many thought about the potential uses of AI, calling for legislation at the federal level that would more broadly protect artists as well as fight against disinformation. “It’s frightening,” he said.