Governor Newsom recently signed two significant bills focused on protecting digital likeness rights: Assembly Bill (AB)1836 and Assembly Bill (AB) 2602. These legislative measures aim to address the complex issues surrounding the commercial use of an individual’s digital rights and establish guidelines for responsible AI use in the digital age.

California AB 1836 addresses the use of likeness and digital replica rights for various individuals and establishes regulatory safeguards for digital replicas and avatars used in commercial settings. The bill outlines the following key provisions:

• The law defines digital replicas as any digital representation of an individual that is created using their likeness, voice, or other personal attributes.
• Explicit consent must be obtained from individuals before their digital replicas can be used for any commercial purpose. Consent must be documented and cannot be implied or assumed.
• The law restricts the use of digital replicas in contexts that could mislead or deceive consumers, including political endorsements, commercial advertisements, and other public statements without the individual’s explicit consent.
• Violations of AB 1836 can result in significant penalties, including fines and potential civil lawsuits. The bill empowers individuals to seek damages if their digital replicas are used without consent.

AB 2602 complements AB 1836 by further strengthening the legal framework surrounding digital replicas. AB 2602 specifically addresses the following aspects:

• Sets forth stringent privacy protections for individuals whose digital replicas are used in any capacity. This includes safeguarding personal data and ensuring that digital replicas are not exploited for unauthorized purposes.
• Mandates that any use of digital replicas must be accompanied by clear disclosures indicating the nature of the replica and the purpose for which it is being used. This ensures that consumers are informed and not misled.
• Imposes harsher penalties for violations, including higher fines and longer statutes of limitations for filing civil lawsuits. It also provides for criminal charges in severe cases of misuse.
• Businesses using digital replicas must undergo regular third-party audits to verify compliance with AB 2602. These audits will help maintain transparency and accountability.

While California has taken a pioneering step with AB 1836 and AB 2602, other states have also enacted or proposed legislation to address digital replica rights. The following are examples of how different states handle these rights:

• New York: New York has robust laws protecting individuals’ rights to their likeness and voice. The state’s Civil Rights Law Sections 50 and 51 provide individuals with the right to control the commercial use of their image and voice. Explicit consent is required for any commercial usage, similar to AB 1836.
• Florida: Florida’s statutes also protect individuals’ rights to their likeness. The Florida Statutes Section 540.08 mandates that explicit consent must be obtained for using an individual’s name, photograph, or likeness for commercial purposes. The law provides a framework similar to California’s AB 1836.
• Illinois: Illinois has the Right of Publicity Act, which prohibits the unauthorized use of an individual’s identity for commercial purposes. The Act is comprehensive, covering various aspects of an individual’s persona, including their voice, signature, photograph, and likeness. Violations can lead to considerable fines and damages.
• Texas: Texas recognizes an individual’s right to control the use of their likeness and voice through the Texas Property Code Section 26.001, which requires written consent for commercial use. The law is designed to protect individuals from unauthorized exploitation of their persona.

Employers and businesses must be aware of the following takeaways from AB 1836, AB 2602, and other state legislation to ensure compliance and avoid potential legal repercussions:

• Obtain Clear Consent: Employers must implement mechanisms to obtain clear and documented consent from employees or any individuals whose digital replicas will be used for commercial activities, such as marketing. Employers might consider following a similar rule whenever using an employee’s digital replica.
• Review Existing Practices: It is essential for businesses to review their current practices involving digital replicas and ensure they align with the new legal requirements. This includes updating contracts and privacy policies to meet the standards set by different states.
• Train Employees: Businesses should provide training to employees on the implications of these laws and the importance of obtaining consent before using digital replicas. This training should cover the specific requirements of the states in which the business operates.
• Monitor Compliance: Establish a compliance monitoring system to regularly check that all practices involving digital replicas adhere to the provisions of AB 1836, AB 2602, and other relevant state legislation. Regular audits and updates can help maintain compliance across multiple jurisdictions.

California Assembly Bills 1836 and 2602 mark significant developments in the realm of digital replica rights, emphasizing the need for explicit consent, transparency, and enhanced privacy protections.