To begin filling in this gap and protect performers from unauthorized digital replications of their voices<\/em><\/a>, New York passed Senate Bill 7676B<\/em><\/a>, a law that establishes requirements for contracts that involve the creation and use of digital replicas. This article evaluates the ways in which this new digital replica law extends performers\u2019 right of publicity to their voice along with its limitations.<\/p>\n\n\n\n <\/p>\n\n\n\n Right of Publicity<\/strong><\/p>\n\n\n\n To understand New York\u2019s digital replicas law, one must first understand the right of publicity, specifically the property rights that actors, singers, comedians, and other performers maintain in their voices.<\/p>\n\n\n\n The right of publicity<\/em><\/a> protects a person\u2019s commercial interest in the identifiable aspects of their identity, generally their name, image, likeness, and sometimes their voice, to protect against commercial exploitation of their identity. Currently, there is no federal right of publicity<\/em><\/a>. While the U.S. Copyright Office<\/em><\/a> has urged for federal legislation to protect the right of publicity and lawmakers recently introduced multiple pieces of legislation, including the No AI FRAUD Act<\/em><\/a> and the NO FAKES Act<\/em><\/a>, to protect this right, a right of publicity has never enjoyed federal protection.<\/p>\n\n\n\n Instead, the right of publicity is recognized by most states in statutory or common law<\/em><\/a>. However, not all states recognize this right, sometimes recognizing similar rights under a right of privacy<\/em><\/a>. Further, each state recognizes different legal standards for their right of publicity, such that the boundaries of a right of publicity claim vary greatly from state-to-state<\/em><\/a>. <\/em>The types of identifiable aspects of identity covered, the duration of the right, and how the right is protected varies greatly by the patchwork of state right of publicity laws<\/em><\/a>. And as the U.S. Copyright Office noted in their first report on copyright and AI, focused on digital replicas, some state laws are too narrow<\/em><\/a> to protect artists from the harms of digital replicas. For instance, in Arizona<\/em><\/a>, publicity laws only protect soldiers while in Texas<\/em><\/a>, publicity laws only protect those who are deceased.<\/p>\n\n\n\n <\/p>\n\n\n\n Voice Rights<\/strong><\/p>\n\n\n\n Most state right of publicity laws cover name, image, and likeness. However, this right expanded in several states including New York<\/em><\/a> to cover \u201cvoice\u201d in light of the Ninth Circuit case Midler v. Ford<\/em><\/a>. There, renowned singer Bette Midler sued the Ford Motor Company for hiring a \u201csound-alike\u201d to imitate her singing voice in a commercial after she turned it down, such that the public assumed Midler was singing. The Ninth Circuit set a precedent, upheld by the Supreme Court, that \u201ca voice is as distinctive and personal as a face<\/em><\/a>\u201d and thus, \u201cwhen <\/em>a distinctive voice of a professional singer is widely known and is deliberately imitated in order to sell a product, the sellers have appropriated what is not theirs and have committed a tort in California<\/em><\/a>.\u201d In so holding, Midler v. Ford<\/em> acknowledged the common law of voice misappropriation<\/em><\/a> in California and justified how a performer\u2019s voice could be a protectable aspect of their identity.<\/p>\n\n\n\n The Midler<\/em> case encouraged New York lawmakers<\/em><\/a> to extend the right of publicity, recognized under their right of privacy statutes<\/em><\/a>, to include \u201cvoice.\u201d Subsequently, the New York legislature expanded New York Civil Rights Law \u00a7 51<\/em><\/a> in 1995 to protect voice rights, for which one could seek remedies if exploited, and New York case law has since protected the right a performer has to their voice<\/em><\/a>. The New York legislature also expanded \u00a7 50<\/em><\/a> to explicitly offers individuals a privacy right to use their voice for commercial purposes.<\/p>\n\n\n\n Further, after years of negotiation<\/em><\/a> primarily between the Motion Picture Association<\/em><\/a> (\u201cMTA\u201d) and the Screen Actors Guild \u2013 American Federation of Television and Radio Artists<\/em><\/a> (\u201cSAG-AFTRA\u201d), New York extended \u00a7 50-f<\/em><\/a>, which details performers\u2019 right of publicity, in 2022 to include a civil right of action for the unauthorized creation of digital replicas of deceased performers<\/em><\/a>. Specifically, if a deceased individual made their livelihood by acting or singing and their voice was used in a digital replica to generate an unauthorized and fictitious \u201cnew\u201d performance, their estate or whomever their property right was transferred to post-mortem could receive damages. While this expansion had significant exceptions<\/em><\/a>, such as only protecting the rights of dead, rather than live, celebrities, carving out First Amendment and disclaimer defenses, and only applying to specific types of works, this was New York\u2019s first step to catching up with the needs of performers in the wake of massive technological advances.<\/p>\n\n\n\n <\/p>\n\n\n\n New York\u2019s \u201cContracts for the Creation and Use of Digital Replicas\u201d Law<\/strong><\/p>\n\n\n\n New York\u2019s new digital replicas law<\/em><\/a> <\/em>was introduced to the New York State Senate on October 2, 2023 by Senator Ramos. It unanimously passed<\/em><\/a> the Senate on June 6, 2024, and then passed the State Assembly the following day on June 7, 2024. Governor Hochul signed the bill, passing it into law on December 13, 2024, effective January 1, 2025. While this amendment to New York\u2019s general obligations law does not explicitly extend New York\u2019s right of publicity, it effectively extends the right that performers have to their voice by establishing contractual requirements<\/em><\/a> for the creation and use of digital replicas.<\/p>\n\n\n\n This act makes any contractual provision that provides for the creation of a \u201cnew\u201d performance by digital replica \u201cvoid and unenforceable\u201d if the provision does not meet three conditions<\/em><\/a>. First, the provision must not permit the creation and use of a digital replica if the replica will be used to replace work that the performer otherwise would have actually done. Second, the provision for a digital replica must include a \u201creasonably specific description\u201d of its intended use. Third, the performer must be represented by legal counsel who negotiated on clear terms related to licensing the performer\u2019s digital replica rights or by a labor organization where the terms of their collective bargaining agreement explicitly address the use of digital replicas. The law defines a digital replica<\/em><\/a> as a digital simulation of an individual\u2019s voice or likeness that so closely resembles that individual\u2019s real voice, such that the average person could not distinguish the two. Overall, this law ensures that performing artists enter into agreements with informed consent<\/em><\/a> regarding how their digital voice rights will be used to ensure that they can continue making a living through their arts rather than be replaced by AI.<\/p>\n\n\n\n New York\u2019s digital replicas law is similar to laws<\/em><\/a> recently passed in California<\/em><\/a> and Tennessee<\/em><\/a>. It is especially to California\u2019s Assembly Bill 2602<\/em><\/a>, which was pushed for by SAG-AFTRA as well, signed by Governor Newsom on September 17, 2024, and is also effective as of the beginning of 2025. The California law requires the same three conditions as the New York law for any contract provisions<\/em><\/a> that provide for the creation of digital replicas; otherwise, the provisions are void.<\/p>\n\n\n\n New York\u2019s digital replicas law has several advantages. Notably, it is the first New York law to address unauthorized AI voice cloning. It effectively establishes industry guardrails around contracting for a performer\u2019s digital voice rights. Similar to the California law, it prevents businesses from using AI to replicate performer’s voices without their informed consent<\/em><\/a>, such that companies cannot simply profit off of the commercial value of performers\u2019 voices. While AI companies have licensed performers’ voices<\/em><\/a> independently of such laws, it is far from the industry norm. By creating a contractual standard that voices cannot be mimicked for profit but instead must be used in ways explicitly agreed upon by a performer\u2019s representation, this should normalize the licensing of New York-based performers\u2019 voices, which are a valuable commercial entity. This way, performers who seek to profit from digital replicas are fully informed about how their voices will be used, agree to that use, are not sought after by companies who seek these rights to avoid hiring actual people, and are paid appropriately.<\/p>\n\n\n\n Further, the law\u2019s emphasis on clear and conspicuous terms for digital replicas will help to ensure that performers and their representatives understand exactly what they are agreeing to<\/em><\/a> when they enter into contracts. Companies can neither hide language on digital replicas in their contracts nor include vague language, such that performers accidentally sign the rights to their voices away without their knowledge<\/em><\/a>. As a result, this law should normalize having separate negotiations and agreements for the creation of digital replicas, rather than including digital replica language in standard form contracts that artists feel compelled to sign.<\/p>\n\n\n\n <\/p>\n\n\n\n Limitations<\/strong><\/p>\n\n\n\n While New York\u2019s digital replicas law is a useful step to help performers combat the rise of voice cloning AI deepfakes, this law has substantial limitations which may not adequately cover performers\u2019 needs.<\/p>\n\n\n\n First, this law does not expand the right of publicity generally. It only explicitly protects performers who contract to relinquish voice rights. Thus, compared to Tennessee\u2019s Ensuring Likeness, Voice, and Image Security Act<\/em><\/a> <\/em>(\u201cELVIS Act\u201d), <\/em>which creates novel forms of secondary liability<\/em><\/a> against both companies that distribute unauthorized digital replicas along with the AI companies that produce tools or software that are used to create unauthorized replicas, New York\u2019s law is substantially more limited in scope. It will still be challenging to sue companies who, like in Scarlett Johannson\u2019s and the voice actors\u2019 cases, do not contract with artists but replicate and profit from their voices anyway. And there are still no causes of actions in New York to hold AI companies accountable for creating this technology that harms artists\u2019 careers.<\/p>\n\n\n\n
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