We are all witnessing the proliferation of AI-generated content, not only in written content and search results, but in audio and video content. Advertisers and other content creators may perceive benefits in the new technology: the ability to create content in a fraction of the time, without paid actors, sets, and expensive production equipment. But there is also pushback against threats the new technology poses to the public, such as through “deepfakes”
– using AI-generated audio or video to mimic a real person’s likeness or voice to make it appear they said or did something they never did. At the federal level, a bill was recently reintroduced after the initial version stalled – the No FAKES Act – that would prohibit the unauthorized use of an individual’s voice or likeness in AI-generated deepfakes.
New York State is now proposing action, with the legislature advancing two new bills on June 17, 2025, with potential impact on advertisers and other content creators. If signed by the Governor, the bills would: (i) require the disclosure of an advertisement’s use of AI-generated performers; and (ii) require consent to use digital renderings of deceased performers in commercial works.
Synthetic Performer Disclosure Requirement (Bill No. A8887B)
The first bill relating to advertising disclosure would amend section 396-b of the General Business Law. As the bill’s justification states: “This legislation will require synthetic performers used for a commercial purpose to be clearly labeled as such so that the average user will be able to easily discern, at the point of viewing, that the image they are looking at is not real, but a synthetic performer.” Specifically, the bill would apply to any business that produces an advertisement for a commercial purpose.
The bill broadly applies to “any medium or media.” It would require the advertiser to “conspicuously disclose in such advertisement that a synthetic performer is in such advertisement.” The bill defines “synthetic performer” as: a digitally created asset created, reproduced, or modified by computer, using generative artificial intelligence or a software algorithm, that is intended to create the impression that the asset is engaging in audiovisual and/or visual performance of a human performer who is not recognizable as any identifiable natural performer.
As such, the bill, on its face, would require disclosure not only in the context of deepfakes where the likeness of a real person is mimicked, but also the use of entirely fictitious AI-generated “human performers.” Violations of the bill would carry penalties of a $1,000 fine for the first offense and $5,000 for any subsequent offenses. The bill would not apply to audio-only advertisements (e.g., radio spots); there must be a visual component. There is also an exception for advertisements for “expressive works,” defined to include such things as movies, television programs, and video games, provided that the use of the synthetic performer in the advertisement is “consistent with its use in the expressive work.” In contrast, if a business uses a synthetic performer to advertise its goods or services, this exception would not apply. The bill also carves out advertising mediums, such as television networks or streaming services, from liability. In other words, the penalties for violations would fall on the business that created the advertisement, not on the medium that displayed the advertisement.
Deceased Personality Digital Replica Consent Requirement (Bill No. A8882)
The second bill would amend section 50-f of the Civil Rights Law to prohibit the use of a “digital replica” of a deceased personality’s voice or likeness in a commercial work without prior consent from the rights holder. This bill follows New York’s passage in 2020 of a statutory requirement of consent for the use of the name, image, or likeness of a deceased personality for commercial purposes. As the current bill’s justification states: “Now, only 5 years later, anyone with a smartphone can produce and disseminate digital replicas. Given the unparalleled dangers presented by ubiquitous digital cloning, New York must strengthen its right of publicity laws to protect deceased persons from being exploited.”
The bill would create a private right of action and the recovery of damages against: “Any person who uses a deceased performer’s digital replica in an audiovisual work, sound recording, or for the live performance of a musical work” without consent. A “digital replica” is defined as: a newly created, computer-generated, highly realistic electronic representation that is readily identifiable as the voice or visual likeness of an individual that is embodied in a sound recording, image, audiovisual work, including an audiovisual work that does not have accompanying sounds, or transmission in which: (i) the actual individual did not actually perform or appear; or (ii) the actual individual did perform or appear, but the fundamental character of the performance or appearance has been materially altered. The bill contains certain exceptions such as for parody or news content, but provides that if there is an advertising component, liability may nevertheless be imposed where “the use of the deceased personality’s name, voice, signature, photograph, or likeness was so directly connected with the commercial sponsorship or with the paid advertising or product placement as to constitute a use for which consent is required.”
Unlike the disclosure bill discussed above, liability under the digital replica bill can be imposed on mediums that display the work, but only where the medium receives a notice of violation and does not remove the work containing the digital replica “as soon as is technically and practically feasible.”
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New York state and local lawmakers clearly have a focus on AI and are attempting to ensure that laws keep up with the rapidly-expanding technology and protect the public against potential misuses of the technology. As we previously reported, New York City passed a law that prohibits employers from using AI tools to make hiring or other employment decisions unless the employer complies with certain requirements to prevent discriminatory impact (AI Hiring Poses Discrimination Risk; A Cautionary Tale). The current bills discussed here should be monitored by advertisers and other content creators to ensure that, in seeking to utilize new technologies to create attention-grabbing content at a potentially faster pace and lower cost, they do not fall into a trap of being accused of consumer deception or misappropriation of rights.
We will continue to monitor developments regarding these bills and the AI landscape. For further assistance please contact your primary Golenbock attorney or Matthew C. Daly, (212) 907-7329, mdaly@golenbock.com.
Golenbock Eiseman Assor Bell & Peskoe LLP uses Client Alerts to inform clients and other interested parties of noteworthy issues, decisions and legislation that may affect them or their businesses. A Client Alert should not be construed or relied upon as legal advice. This Client Alert may be considered advertising under applicable state laws.
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