California has joined New York in regulating the use of AI-generated human performers in advertising. Gov. Gavin Newsom signed Senate Bill 1050, which requires advertisers to clearly and conspicuously disclose when an advertisement prominently features a “synthetic performer.”
The law applies broadly to audio, video, audiovisual, and digital advertisements disseminated through virtually any medium, including online platforms, where the communication is intended or reasonably expected to induce the purchase of goods or services.
How California Defines Synthetic Performer
The law defines a “synthetic performer” as a digital figure, voice, or representation created in whole or in part using generative AI that creates the realistic impression of a human performance but is not recognizable as an identifiable real person. In other words, the law appears to be directed primarily at entirely synthetic AI performers—not situations where AI is merely used to enhance, alter, or modify the image, likeness, or voice of an identifiable person. Other laws governing digital replicas, rights of publicity, endorsements, or deceptive advertising may, of course, still apply.
Not every appearance of a synthetic performer triggers the disclosure requirement. The performer must be featured “prominently” in the advertisement. A synthetic performer is considered prominent when the performer is in the foreground and demonstrates or illustrates the advertised product or service; provides or voices the on- or off-camera narration or commercial message; or illustrates or reacts to that narration or commercial message.
Unlike New York’s synthetic performer law, which requires a “conspicuous” disclosure but provides relatively little guidance about what the disclosure should say, California gives advertisers some more direction.
California’s AI Advertising Disclosure Requirements
The disclosure must use language substantially similar to “this performance features a synthetic performer” or “no human performer is depicted.” It also must be “clear and conspicuous”—meaning difficult to miss, easily understandable, and presented so that a reasonable consumer would notice, read, and understand it in the context of the particular advertisement.
California Law Exemptions and Enforcement
The law contains several exemptions. It does not apply to advertisements for expressive works—including motion pictures, television programs, streaming content, documentaries, video games, and similar audiovisual works—provided that the use of the synthetic performer in the advertisement or promotional material is consistent with its use in the underlying expressive work. It also does not apply where generative AI is used solely for language translation of a human performer or for other accessibility features.
A violation of the synthetic performer disclosure requirement constitutes a violation of California’s False Advertising Law and may be enforced under the state’s Unfair Competition Law. Although the law is framed as a disclosure and advertising law, a challenger will face difficulties demonstrating sufficient injury to prosecute violations on a classwide basis. The law will more likely be used for individual human performers to enforce their likeness.
The law also imposes obligations on advertising platforms and other advertising media after a court order. Once served with an order finding a violation or enjoining publication, along with sufficient information to identify the advertisement, the advertising medium must stop disseminating the advertisement in California and stop accepting payment for further dissemination as soon as commercially reasonable and technically feasible.
Hawaii Prohibits Certain Human “Digital Imitations”
Other states are also regulating AI-generated human performers. Earlier this summer, Hawaii enacted Act 247, which prohibits knowingly using an AI-generated “digital imitation” of an identifiable individual without the express written consent of that person or an authorized representative where the imitation:
- Is used in connection with an advertisement
- Causes harm; or
- Is used to commit fraud, defamation, harassment, or other criminal acts
Unlike California and New York, Hawaii’s law focuses on AI-generated imitations of identifiable individuals rather than synthetic performers who are not identifiable as real persons. Hawaii also takes a different regulatory approach: rather than requiring disclosure of AI-generated content, it prohibits covered uses absent the required consent.
AI Advertising Compliance for Companies
So, what should advertisers do now? Companies using AI-generated performers should first determine which law(s) applies based on the type of AI technologies used to depict human performers and then review existing and planned campaigns to determine whether they trigger California’s new disclosure requirement or Hawaii’s consent requirement. And because California and New York have now adopted similar—but not identical—requirements, companies running national campaigns should consider whether a single disclosure approach will satisfy both laws or whether jurisdiction-specific treatment is necessary.
For example, California provides a sample disclosure stating that “no human performer is depicted.” An aggressive challenger could take the position that this language does not satisfy New York law because it states only that no real person appears in the advertisement, while New York requires an affirmative disclosure that “a synthetic performer is in such advertisement.”
Companies should also consider building AI questions into their existing advertising review processes. That includes confirming whether creatives contain synthetic performers, determining who is responsible for required disclosures, and addressing those responsibilities in agreements with agencies, production companies, AI vendors, and other partners. Companies using synthetic performers should therefore expect this area to continue evolving—and build compliance processes that can evolve with it.
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