USA – NEW YORK Trends and Developments Contributed by: Nancy E Wolff, Scott J Sholder and Elizabeth Safran, Cowan, DeBaets, Abrahams & Sheppard LLP
digital replicas, California has been perhaps the most proactive. Home to Hollywood, a boom - ing tech sector, and the jurisdiction – in addi - tion to New York – that addresses most of the country’s IP disputes, California is leading the way with far-reaching legislation that regulates the use of AI. The state recently passed 18 new AI-related bills, addressing areas such as media and entertainment and AI transparency. Much of the law recently went into effect in January 2025, such as California A.B. 2602, “Contracts against Public Policy: Personal or Professional Services: Digital Replicas Act”, addressing digital replica contracts, and California A.B. 1836 or “Use of Likeness: Digital Replica Act”, addressing digital replicas of deceased personalities. The former protects against using AI to misappropriate per - formers’ names, images, and likenesses through restricting certain unfair contract terms pertain - ing to digital replicas. The latter addresses digital replicas of deceased celebrities, allowing their beneficiaries to recover damages in the event that unauthorised replicas are used in audio - visual works or sound recordings. The Act also requires entities to obtain an estate’s consent before using a deceased celebrity’s likeness. In turn, various legislation is slated to go into effect in January 2026, such as the “California AI Transparency Act”, mandating that publicly accessible AI systems with over one million monthly users disclose the presence of AI-gen - erated or modified content, and also establish - ing licensing practices so that only compliant AI systems are allowed for public use. Under this law, AI providers must also offer a free public tool for users to verify the presence of AI gener - ated or modified content. In a similar push for transparency, the “Generative AI: Training Data and Transparency Act” will go into effect at the same time and require AI developers to publish high-level summaries of the datasets they have
used to train their AI systems. These are only some of the pertinent acts California has recently passed, with healthcare, electoral integrity, and consumer privacy also at the forefront of this sweeping legislation. Overall, these bills represent one of the first major legislative efforts at greater AI regulation in the US. As to digital replicas specifically, there may perhaps be pre-emptive federal legislation on the horizon, though. In July 2024, Congress itself introduced a bill called the “Nurture Origi - nals, Foster Art, and Keep Entertainment Safe Act”, or the “NO FAKES Act”, addressing digital replicas, which would pre-empt future state laws on the same topic (though not existing legisla - tion, such as California’s, New York’s, and Ten - nessee’s). The law would apply to individuals generally, not merely celebrities, and include various free speech exemptions for satire, paro - dy, and documentary use, that some criticise as missing from current state laws, like California’s. The law would also ensure that a person’s rights could not be fully transferred to a third party dur - ing their lifetime. While advocates continue to push for Congress to establish an overall fed - eral right of publicity that would, as an umbrella, address digital replicas, to date the NO FAKES bill is one to watch at least as far as digital rep - licas are concerned, in this ever-shifting AI legal The year 2024 was clearly yet another fast-paced year for the growth and adoption of generative AI and the issues raised therefrom, notably digi - tal replicas, which has been at the forefront of legislative efforts thus far surrounding AI. As we set forth in 2025, the authors expect much more discussion and development from US judicial, legislative, and commercial entities on this topic. Taking into account the legal measures we are landscape. Conclusion
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