Starting 1 January 2025, California Assembly Bill 2602 (AB 2602) will prohibit the use of vague, unfair, and unethical contractual terms that, without the performer’s full awareness, permit the unregulated production, use, and distribution of digital replicas of their likeness.
Specifically, under AB 2602, a contract provision that allows for the creation and use of a digital replica of an individual’s voice or likeness in place of work that the individual would otherwise have performed in person must include a “reasonably specific” list of all proposed uses of the digital replica (unless the uses are otherwise consistent with the terms of the contract for the performance of personal or professional services and the fundamental character of the photography or soundtrack as recorded or performed). In addition, the individual must be represented:
- By legal counsel who negotiated on the individual’s behalf, with the commercial terms stated clearly and conspicuously in a contract or other writing signed or initialed by the individual; or
- By a labor union representing workers who do the proposed work, with the terms of their collective bargaining agreement expressly addressing uses of digital replicas.
AB 2602 applies to new performances fixed on or after 1 January 2025. Therefore, it is important to review and update, as necessary, performer contract forms and amend existing agreements to ensure they contain the required specificity (e.g., in a schedule or addendum to the contract that can be updated for each performer and situation) and confirm that the individual was represented by counsel or the individual’s union. Broad language granting employers the right to “any and all media” created under a talent contract will not fly in the new year.
The impact of this legislation remains to be seen. However, studios and others can expect higher scrutiny by performers and their legal representation in negotiations involving contracts concerning digital replica rights.
