California Passes AI Digital Replica Law for Performers
October 30, 2024 - Nancy Wolff
On September 17, 2024, California A.B. 2602 was signed into law adding section 927 to the Labor Code, effective January 1, 2025. The Law is designed to protect individuals from unfair contracts and the possibility of being replaced by their digital replica. After the effective date, to create enforceable contracts with performers that would include the creation of potential digital replicas for new performances by that digital replica, a contract cannot contain the following three requirements:
The provision allows for the creation of a digital replica of the individual’s voice or likeness that could be used to perform work that the individual would have otherwise performed themselves.
The provision does not include a reasonably specific description of the intended uses of the digital replica.
However, this failure to provide a reasonable description of the intended uses of the digital replica does not render the provision unenforceable so long as the uses of the digital replica, “are consistent with the terms of the contract for the performance of personal or professional services and the fundamental character of the photography or soundtrack as recorded or performed.”
The individual was not represented by either:
Legal counsel, who negotiated the digital replica rights for them or
a labor union that represents workers that do the proposed work.
The agreed upon commercial terms for those digital replica rights must be stated “clearly and conspicuously” in a contract or some other writing that is signed by the individual or their collective bargaining agreement must expressly address the issue of digital replica uses.
However, even if all three requirements are met, only the digital replica provision is rendered unenforceable, and it has no impact on the rest of the contract. Neither will it impact on any exclusivity grants found in or relating to a digital replica provision.
Defining “Digital Replica”
The law includes a definition of digital replica which is defined 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.”
It is important to note that there are a few carveouts from this definition. These carveouts allow for electronic reproduction, sampling, remixing, mastering, and digital remastering of a sound recording or audiovisual work that was approved by the holder of the copyright.
Recommendations
For those looking to contract for such digital replica rights, this bill introduces some new hurdles that can be overcome by careful drafting. Only if all three requirements are met can the digital replica provision be rendered unenforceable. So long as a potential contractor ensures either a proper description of the intended uses or that they are dealing with proper representation for the individual, they are covered.
Articulating the intended uses for a given digital replica in the proposed contract is paramount and is recommended in all contracts regardless of the new law. First, it helps to understand what the purpose behind acquiring these digital replica rights is, and if those rights are worth it. It also ensures that both parties understand what they are signing for, reducing the potential for conflict later.
This is especially important considering that such a detailed description of intended uses is not strictly necessary. So long as the use stays within certain guidelines, it will not breach this section. However, those guidelines are vague, such as what uses are consistent with the fundamental character of a work.
If including such a description in the contract is not feasible for whatever reason, legal counsel should be prepared to sit down and negotiate with the performer’s legal counsel or union representatives. For individuals, lawyers may need to advise the performer to seek counsel to negotiate this aspect of the contract. Similarly, when dealing with union representatives, you must ensure that the collective bargaining agreement expressly addresses the digital replica issue. It should also be noted that any exclusivity grants in or related to a digital replica provision are protected. This means that even if the overall digital replica provision is rendered unenforceable, that grant of exclusivity remains valid.
Conclusion
California A.B. 2602 is one of the first states to offer performers protection against the possibility of their being replaced by their digital replicas, which is something that many organizations such as SAG-AFTRA have been pushing for. This legislation is part of a broader movement to better protect the digital replica rights of individuals both on a state and federal basis and it is likely that other bills will follow. California also passed A.B. 1836, an amendment to its post- postmortem right of publicity statute to include digital replicas on the same day.
By Nancy E. Wolff with JT Fitzpatrick