People reflect in a hotel window on Davos’ Promenade with a slogan for AI alongside the World Economic Forum in Davos, Switzerland, Monday, Jan. 15, 2024. (AP Photo/Markus Schreiber)
In recent years, Californians have seen government intervention in congestion. From water rationing to hitting the “gig economy,” Sacramento has shown us how to live our lives and run our businesses. Now, the state government has set its sights on one of our most fundamental rights: freedom of contract.
The contract is the opposite of government regulation. It allows people to make mutually beneficial arrangements without the coercive powers of the state dictating terms. People make contracts every day without government interference.
When it comes to contracts for the use of one’s digital likeness, Sacramento now wants to limit that freedom, fueled by a technopanic over generative artificial intelligence.
Assembly Bill 459 targets so-called “digital clones,” which are virtual representations of real people. Creators have been using replicas for decades, using teams of skilled animators and computer-generated imagery (CGI). AI simplifies and reduces the barriers to this technology, making it easier for smaller producers without big studio budgets to incorporate digital copies into their art.
Of course, when technology becomes available to the masses, it is harder to control.
The bill would insert the government into the creative process, unnecessarily dictating special provisions for the use of digital copies if the business seeks to create a digital copy of a pleasant employee. Worse, the legislation would be retroactive and would invalidate existing contracts if the employee was not represented by a lawyer or union representative during the bargaining period.
Californians can adopt a child, get married, sell a home, create a last will, and organize a corporation in the Golden State without paying an attorney or union fees. But sign a deal for digital copies? That’s a bridge too far, AB 459’s sponsors say.
While one can appreciate the wisdom of individuals holding counsel in many contexts, it is not the government’s job to require it for digital copies or any other reason. Such a requirement is likely unconstitutional and, as a matter of policy, is a dangerous overreach that compromises the individual liberty of performers and ordinary Californians.
Additionally, AB 459 does nothing to address the actual harms, and potential harms, associated with digital copies created using AI. This technology is used for exploitation. The AI-generated fake pornographic images of Taylor Swift posted on social media last month are a shocking example. Likewise, an AI-generated voice clone used to convince parents that their child was abducted, or an unauthorized dental ad featuring an AI-generated Tom Hanks, were not created by bona fide businesses, but malicious actors seeking illicit financial gain.
AB 459 does nothing to limit or punish such behavior, but imposes a number of new costs on individuals and businesses seeking legitimate uses of the technology.
The proposal is simply impractical. The law’s terms like “digital copy” and “generative artificial intelligence” are ill-defined and so vague that it is unclear how such a retroactive requirement would apply.
Would a cartoon depiction of an actor in an episode of The Simpsons meet the definition of a “digital copy”? Will common editing techniques and CGI use cases, such as those that put Forrest Gump at the center of major world events, now be considered “AI”? Are studios and production companies, let alone smaller creators, supposed to comb through their work and try to identify “digital copies” that the drafters can’t even define? That would be a boon for lawyers, but a waste of time and money for creators — and a loss for California’s economy.
As is often the case, Sacramento is rushing to fix complicated questions that can be better answered by others. Copyright law is a federal matter, and it makes sense to see what Congress can do before trying to prevent more controversial action.
There are valid concerns supporting AB 459. No one wants to see actors and creators exploited by new technology. But Sacramento doesn’t have to go it alone.
Lance Christensen is Vice President of Government Affairs at the California Policy Center.