A bill to protect performers from unauthorized AI replicas was approved by the California Senate on Tuesday and will soon head to the governor’s desk.
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SAG-AFTRA, the actors union, has made the bill one of its top legislative priorities this year. AB 2602 would require explicit consent for the use of a “digital replica” of a performer.
The bill mirrors language in the SAG-AFTRA contract that ended last year’s four-month strike against the film and TV studios. It would also extend those protections to include other types of performances, such as videogames, audio books and commercials, and would also encompass non-union work.
“We’re looking to make sure people who aren’t currently covered by one of our agreements are protected,” said Jeffrey Bennett, general counsel of SAG-AFTRA. “We don’t want to see the next generation of performers lose all rights to voice and likeness because they don’t have any leverage or ability to effectuate fair terms.”
The Motion Picture Association, which lobbies on behalf of the major studios, initially opposed the bill, arguing that it would interfere with common post-production techniques. Legislators changed some of the language to address those concerns, and the MPA ultimately took a neutral position.
The Assembly approved the bill in May on a vote of 62-0. It passed the Senate 36-1. Because it was amended in the Senate, it must go back to the Assembly for concurrence before it goes to Gov. Gavin Newsom.
Duncan Crabtree-Ireland, the executive director of SAG-AFTRA, called the bill “a huge step forward.”
“Voice and likeness rights, in an age of digital replication, must have strong guardrails around licensing to protect from abuse, this bill provides those guardrails,” he said.
The bill is one of several the Legislature is considering to address the potential threats of artificial intelligence.
The union proposed the legislation out of concern over sweeping language in many performance contracts that grant rights to use an actor’s likeness “throughout the universe” and “in all media whether now known or hereafter devised.”
Those contracts — which a performer might sign to do a one-day commercial shoot — could conceivably be interpreted by clever lawyers as granting the right to use AI to create other performances. In the nightmare scenario, an actor might end up competing against their own likeness for work.
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The bill would require that the rights to an AI replica must be explicitly bargained for, and the contract must include a “reasonably specific” description of the eventual use. That language also appears in the SAG-AFTRA contract with the studios.
Contracts without such language would be unenforceable.
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“We wanted to make sure it was understood those rights don’t automatically transfer,” Bennett said. “You have to explicitly want those rights. You have to mention that you want them, and talk about the uses they would bring.”
SAG-AFTRA is currently on strike against the major videogame companies, after negotiations stalled over the AI provisions.
SAG-AFTRA is also pushing for a federal law, the “No Fakes Act,” that would make it unlawful to create a digital replica of anyone — whether a performer or a regular person — without their consent.
The MPA has warned that if such laws are written too broadly, they can run afoul of the First Amendment by prohibiting the use of historical figures in docudramas. After the No Fakes Act was revised to address that issue, the MPA gave its support.
SAG-AFTRA is also lobbying for AB 1836, which would protect the digital replicas of dead performers. The MPA is neutral on that bill as well.
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