The rapid growth of new technologies like artificial intelligence has raised significant issues for entertainers and celebrities. Many contracts have recently been expanded to contain provisions related to the creation and use of digital replicas. Typically, these clauses allow a party to digitally reproduce and use an individual’s voice, appearance and demeanor, including developing an artificially produced voice reproduction. However, some states like New York are stepping in to limit digital replicas to protect parties who may be at a disadvantage in negotiations.

Digital reproductions can be used to create derivative works, such as commercials utilizing an individual’s appearance and voice, without the individual’s ongoing involvement, or even approval. As there is often a power imbalance between the corporations requesting (or demanding) rights to create and use a digital replica and the individual being asked to give it up, many states, including California, have restricted these clauses.

New York State has done likewise adopting a new Section 5-302 of the General Obligations Law, which took effect January 1, 2025. The section, entitled “Contracts for the creation and use of digital replicas,” states that a provision relating to a “new performance by digital replication” will be “contrary to public policy and shall be void and unenforceable,” if it meets the following criteria:

• It permits the use of a digital replica of an individual’s name and likeness in place of work an individual would have otherwise performed;
• The agreement does not include a “reasonably specific description of the intent of the digital replica;” and
• The individual was not represented either by a labor union in negotiating a collective bargaining agreement which includes digital replica provisions or by legal counsel who negotiates these provisions in an employment contract.

In the context of an employment contract, the terms must be clearly stated and separately signed or initialed by the individual. The digital replica provision can be on a separate page or in another document that is signed by the individual. Alternatively, the provision can be included in the employment contract, but that clause must be separately initialed by the individual even if the contract is signed at the end.

If you need assistance with a digital replica provision and/or entertainment contract, contact one of our attorneys for a consultation.