As AI reshapes creative industries, unions and legislatures are setting new boundaries around likeness, authorship, and consent. The following overview highlights how recent labor actions and state laws have redefined what compliance means for producers, performers, and content creators.
The 2023 Strikes Changed Everything
The 2023 WGA and SAG-AFTRA strikes established AI protections as non-negotiable. While only union productions are bound, whenever there are ambiguities in an entertainment contract, these represent industry best practices courts will likely reference.
WGA 2023 Provisions:
- AI cannot write or rewrite literary material.
- AI-generated material cannot undermine writer’s credit.
- Writers must be told if AI was used to generate source material.
SAG-AFTRA 2024-2025 Provisions:
- Digital replica consent required for each specific use.
- Minimum 1.5× session fee for digital replica use (commercials).
- Performers have approval rights.
- Consent cannot be perpetual without additional negotiation.
State Law Developments
New York was one of the first states to codify right-of-publicity protections, making it unlawful to use a person’s name, portrait, picture, or voice for commercial purposes without consent. Though enacted long before AI, these statutes now form the foundation for digital replica protections in New York.
Key Elements
- Advertising or trade purposes: Broadly interpreted to include film, TV, and digital media (beyond traditional ads).
- Picture: Includes any recognizable visual representation.
- Voice: Protects distinctive vocal qualities and speech patterns.
- Written consent: Required; oral or implied permission is insufficient.
- Applies when AI-generated content makes a person recognizable, even if not photorealistic.
- Liability arises if a “reasonable observer” would identify the person depicted.
- Extends to AI-generated deepfakes and synthetic performances styled after identifiable individuals.
Relevant Interpretations
- Simulated likenesses may violate §§ 50–51 even if not exact reproductions.
- AI-generated deepfakes without consent are treated as unauthorized uses.
- Synthetic characters resembling real individuals can trigger liability.
Enforcement and Remedies
- Injunctive relief: Immediate court order to stop unauthorized use.
- Actual damages: Compensation for lost income or reputation harm.
- Punitive damages: Awarded for willful or egregious violations.
- Attorney’s fees: Recoverable by prevailing plaintiffs.
- Statute of limitations: 1 year from discovery (NY CPLR § 215(3)); extended for ongoing use across media.
Best Practices for New York Film & TV Productions
- Obtain explicit written consent for all uses.
- Define scope precisely — specify media, territory, and duration.
- Address AI and digital replica uses explicitly in agreements.
- Maintain complete documentation of consents and releases.
- Avoid perpetual rights unless renegotiated; consider renewal terms.
New York Civil Rights Law § 50-F
- Applies to individuals who died on or after May 2021.
- Extends publicity rights to deceased performers for 40 years post-mortem.
- Explicitly defines and restricts digital replicas of deceased persons.
- Serves as a modern template for interpreting §§ 50–51 in AI contexts: if deceased persons’ likenesses require explicit protection, living persons’ rights must be read at least as broadly.
Practical Implications for Filmmakers
Even if your production isn’t subject to union agreements or California law, compliance with New York’s Civil Rights Law is mandatory for content produced or distributed in the state.
- Talent can sue directly — no guild involvement required.
- Statutes apply regardless of budget size or union status.
- Violations can lead to civil and criminal liability.
- Punitive damages may far exceed actual harm.
Common (and Costly) Misconceptions
- “It’s just a small indie film — we don’t need consent.” → ❌ Budget is irrelevant.
- “We’re not advertising, so it doesn’t apply.” → ❌ Trade purposes includes entertainment.
- “The AI character doesn’t look exactly like them.” → ❌ Recognizability is the standard.
- “They posted it online, so it’s fair game.” → ❌ Public availability ≠ commercial consent.
Other Key Legislative Developments
California AB 1836 (Effective Jan 1, 2025):
- Creates transferable publicity rights for deceased persons (70 years post-mortem).
- Explicitly governs digital replicas and requires estate consent for commercial use.
California AB 2655 (Effective Jan 1, 2025):
- Requires online platforms to label or remove deceptive AI content.
- Impacts social-media advertising and influencer campaigns using AI-generated material.
Pending New York A8887-B / S1228-C:
- Requires clear disclosure when AI-generated performances appear in advertisements.
Navigate the New AI Compliance Framework
AI has permanently altered entertainment law. Guild standards and New York’s powerful Civil Rights statutes have created a new set of non-negotiable rules for all creators. Violations can lead to lawsuits, punitive damages, and the loss of your project’s E&O insurance.
Don’t risk your production on an outdated contract. Schedule a Consultation with our New York City entertainment attorney to ensure your contracts, releases, and post-production workflows align with the latest AI, likeness, and publicity laws.
Contact Rodriques Law for counsel, advice, and sophisticated legal representation on your AI-related agreements.
