As artificial intelligence (AI) and generative AI technologies continue to evolve, the legal landscape surrounding their use has become increasingly complex. In response to growing concerns about digital likenesses and publicity rights, Illinois has enacted two new laws—House Bill 4875 and House Bill 4762—designed to safeguard individuals from unauthorized exploitation of their digital identities.
In recent years, AI technologies have advanced rapidly, allowing for the creation of highly realistic digital replicas of individuals’ voices, images, and likenesses. These technologies, often referred to as “deepfakes,” can be used for various purposes, from entertainment to marketing. However, the ease with which these digital replicas can be created and distributed has raised significant legal and ethical concerns.
Illinois, a state known for its progressive approach to privacy and digital rights, has taken significant steps to address these concerns. A little less than a year ago, Governor JB Pritzker signed House Bill 2123 into law, expanding the state’s Civil Remedies for Nonconsensual Dissemination of Private Sexual Images Act to allow individuals to sue for damages if “digitally altered sexual images” are published without their consent. This law, which takes effect on January 1, 2024, marked a crucial step in protecting individuals from the misuse of their digital likenesses.
Building on this foundation, Illinois has now passed two additional bills—HB 4875 and HB 4762—that specifically target the unauthorized use of digital replicas and seek to protect individuals’ publicity rights.
House Bill 4875: Protecting Against Unauthorized Digital Replicas
House Bill 4875 amends Illinois’ existing Right of Publicity Act to address the unauthorized use of “digital replicas.” Under the new law, a digital replica is defined as a newly created electronic representation of an individual’s voice, image, or likeness, created using AI or other technologies, in a sound recording or audiovisual work in which the individual did not actually perform or appear. The law is particularly concerned with scenarios where a reasonable person would believe that the digital replica is the individual’s actual voice, image, or likeness.
The law prohibits the knowing distribution, transmission, or public availability of sound recordings or audiovisual works containing unauthorized digital replicas. Notably, this prohibition is not limited to commercial uses; it applies broadly to any unauthorized use. The law also holds individuals or entities liable if they materially contribute to, induce, or facilitate the violation of this law by another party.
Given the broad scope of this law, organizations that use employees’ names and likenesses in marketing or other commercial activities may need to revise their consent agreements to ensure they cover the use of digital replicas. This law is set to take effect on January 1, 2025.
House Bill 4762: The Digital Voice and Likeness Protection Act
Complementing HB 4875, House Bill 4762, also known as the Digital Voice and Likeness Protection Act, addresses the unauthorized creation and use of digital replicas in situations where the individual would otherwise have performed the work in person. The Act is designed to prevent the misuse of digital likenesses, particularly in employment and contractual settings.
Under HB 4762, any agreement between an individual and another party that allows for the creation and use of a digital replica of the individual’s voice or likeness is unenforceable if it meets specific criteria. These criteria include:
The agreement allows for the use of a digital replica in place of work the individual would have performed in person.
The agreement does not include a reasonably specific description of the intended uses of the digital replica.
The individual was not represented by legal counsel or a labor union during the negotiation of the agreement.
This provision aims to ensure that individuals are fully informed and represented when consenting to the use of their digital replicas, thereby protecting them from potential exploitation. The law underscores the importance of transparency and consent in the use of digital likenesses.
Implications for Employers and Individuals
The passage of these two bills highlights Illinois’ commitment to protecting individuals’ digital rights in an era of rapid technological advancement. As AI and generative AI technologies become more pervasive, it is essential for organizations to carefully consider how they use digital replicas and to ensure they obtain explicit consent from individuals.
For employees and other individuals, these laws offer critical protections against the unauthorized use of their digital likenesses. They also empower individuals to take legal action if their rights are violated, providing a much-neede.
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