California doesn’t own AI policy

In recent years, Californians have seen government intrusion on overdrive. From water rationing to cracking down on the “gig economy,” Sacramento has been telling us how to live our lives and run our businesses. Now, the state government has its eyes set on one of our most fundamental rights: the freedom of contract.

Contracting is the opposite of governmental regulation. It allows people to make mutually beneficial agreements without the coercive powers of the state dictating the 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 this freedom, driven by a technopanic 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 streamlines and reduces barriers to this technology, making it easier for smaller producers without large movie studio budgets to incorporate digital replicas into their art.

Of course, when technology becomes available to the masses, it’s more difficult to control.

The bill would insert government into the creative process, unnecessarily dictating special provisions about the use of digital replicas if the business seeks to create a digital replica of an agreeable employee. What’s worse is the legislation would be retroactive and invalidate existing contracts if the employee was not represented by a lawyer or union representative during the negotiation period.

Californians can adopt a child, get married, sell a house, create a last will and testament, and organize a corporation in the Golden State without paying a lawyer or union dues. But sign an agreement about digital replicas? That’s a bridge too far, say the sponsors of AB 459.

While one can appreciate the wisdom of individuals retaining counsel in many contexts, it’s not the government’s job to require that for digital replicas or any other reason. Such a requirement is likely unconstitutional and, as a policy matter, is a dangerous overreach that compromises the individual liberty of performers and ordinary Californians.

What’s more, AB 459 does nothing to address actual harms, and potential harms, associated with digital replicas created using AI. This technology has been used for exploitation. The phony pornographic AI-generated images of Taylor Swift released on social media last month is a shocking example. Likewise, an AI-generated voice clone used to convince parents their child was kidnapped, or an unauthorized dental ad featuring an AI-generated Tom Hanks, were not created by good-faith businesses, but rather malicious actors seeking illicit financial gain.

AB 459 does nothing to curtail or punish such behavior but imposes a variety of new costs on individuals and businesses that seek legitimate uses of the technology.

The proposal is simply impractical. The law’s terms like “digital replica” and “generative artificial intelligence” are ill-defined and so vague that it’s unclear how such a retroactive requirement would even apply.

Would a cartoon rendering of an actor in a Simpsons episode meet the definition of a “digital replica”? Will common editing techniques and CGI use cases, like 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 oeuvre and attempt to identify “digital replicas” that the authors of the bill can’t even define? This 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 regulate complicated questions that may be better answered by others. Copyright law is a federal matter and it makes sense to see what Congress may do before we try to preempt a more deliberative action.

There are worthy concerns underpinning AB 459. No one wants to see actors and creators exploited by new technology. But Sacramento shouldn’t go it alone.

Lance Christensen is Vice President of Government Affairs at California Policy Center.