Will Actors Be Replaced by Digital Replicas? California Passes a Law
The California State Legislature has passed a law regulating contracts for the use of digital replicas. Bill AB 2602, titled "Contracts Against Public Policy: Personal or Professional Services: Digital Replicas", introduces amendments to the state's Labor Code. The law will take effect on January 1, 2025.
Key Provisions
The law introduces the concept of a "Digital Replica", defined as a computer-generated, highly realistic electronic representation that can be easily identified as resembling an individual's voice or likeness. This may include sound recordings, images, audiovisual works, or broadcasts.
Furthermore, the law sets forth requirements for contracts concerning personal or professional services involving the use of digital replicas. Such contract terms may be deemed unenforceable if:
- The terms allow for the creation and use of a digital replica instead of work that the individual would otherwise perform personally.
- The terms do not include a sufficiently specific description of the intended use of the digital replica.
- The agreement was signed without the involvement of legal counsel or a union representative.
Contract terms that fail to meet these legal standards may be invalidated in court.
The law applies to new performances recorded on or after January 1, 2025, and extends to all areas of digital replica use, including, but not limited to, film, television, video games, and advertising.
Legal Implications
It is important to note that California law already provided significant protection of individual rights before the passage of this new law, laying the groundwork for regulating the use of a person’s likeness and voice for commercial purposes. In California, the right to use a person’s likeness, name, voice, and signature is protected under Section 3344 of the California Civil Code, which prohibits unauthorized commercial use of these personal attributes without prior consent. Violators may be held liable for actual damages or compensation, whichever is greater, with exceptions for news, public, and political purposes.
The new law does not prohibit the use of digital replicas but imposes strict requirements on contracts governing their use. It has the potential to impact a wide range of companies within the entertainment and advertising industries, including film studios, production companies, video game developers, and advertising agencies.
As a result, companies based in California, those working with individuals located in California, or those choosing California law as the governing law for service contracts involving digital technologies, will need to review and revise their contractual practices and negotiation procedures to ensure compliance with the new legal requirements.
Author: Kamal Tserakhau
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