People reflect in the windows of a hotel on the Davos Promenade holding slogans about AI on the sidelines of the World Economic Forum in Davos, Switzerland, Monday, January 15, 2024. (AP Photo/Markus Schreiber)
Californians have seen government intrusion into Overdrive in recent years. From water rationing to cracking down on the “gig economy,” Sacramento has taught us how to live and run our businesses. Now, state governments are turning their attention to one of our most fundamental rights: freedom of contract.
Contracting is the opposite of government regulation. This allows people to enter into mutually beneficial agreements without state enforcement and dictating terms. People sign contracts every day without government intervention.
When it comes to contracts to use individuals’ digital likenesses, the city of Sacramento is currently trying to limit this freedom due to the techno-panic over generative artificial intelligence.
Assembly Bill 459 targets so-called “digital replicas,” which are virtual representations of real people. Creators have been employing replicas for decades using teams of skilled animators and computer-generated imagery (CGI). AI will streamline and reduce barriers to this technology, making it easier for small producers without the budgets of big movie studios to incorporate digital replicas into their art.
Of course, once technology becomes available to the masses, it becomes more difficult to control.
This bill would create unnecessary government intervention in the creative process by creating special provisions regarding the use of digital replicas when companies seek to create digital replicas of favored employees. Worse, the law would retroactively invalidate existing contracts if employees were not accompanied by an attorney or union representative during the negotiation period.
Californians can adopt, get married, sell a home, write a will and form a corporation in the Golden State without paying a lawyer or union fees. But signing a deal on digital replicas? That’s a bridge too far, AB 459’s sponsors say.
While we can appreciate the wisdom of individuals who hire lawyers in various situations, it is not the government’s job to require them for digital replicas or any other reason. Such a requirement is likely unconstitutional and represents a dangerous overreach in terms of policy that infringes on the personal liberties of performers and ordinary Californians.
Additionally, AB 459 does nothing to address actual or potential harms associated with digital replicas created using AI. This technology is being used for abuse. A shocking example is the fake AI-generated pornographic image of Taylor Swift that was published on social media last month. Similarly, the AI-generated voice clone used to convince parents that their child was abducted or the unauthorized dental ad featuring an AI-generated Tom Hanks were not created by well-intentioned companies. was created by malicious actors seeking illicit financial gain.
AB 459 would not deter or penalize such conduct, but would impose a range of new costs on individuals and businesses seeking to use the technology legally.
This suggestion is completely unrealistic. The law’s terms such as “digital replica” and “generative artificial intelligence” are so poorly defined and so ambiguous that it is unclear how such retroactive requirements would even be applied.
Does a cartoon rendering of an actor appearing in an episode of The Simpsons meet the definition of a “digital replica”? An example of the use of common editing techniques and CGI, such as the one that put Forrest Gump at the center of a major world event Will it be considered “AI” in the future? Studios and production companies, much less small creators, will need to comb through their work to identify “digital replicas” that even the authors of the bill cannot define. Should I try? This is a boon for lawyers, a waste of time and money for creators, and a loss for California’s economy.
As is often the case, the city of Sacramento rushes to regulate complex questions that might be better answered by others. Copyright law is a federal issue, and it makes sense to wait and see what Congress will do before trying to preempt more deliberative measures.
There are legitimate concerns underlying AB 459. No one wants actors or creators to be exploited by new technology. But Sacramento shouldn’t go it alone.
Lance Christensen is vice president of government affairs at the California Policy Center.
