New York State of Mind: Recent Laws in the Empire State Reshape How Content Creators and Advertisers May Use AI

This article is part of DWT's The Generative Slate series. It explores the use of generative AI in the production and distribution of content.

On December 11, 2025, the same day the Trump Administration unveiled its Executive Order aimed at preempting state AI regulations, New York enacted two landmark laws targeting consumer-facing uses of AI. While applauded by many, the impact of these news laws—both on the creative community and consumers—remains uncertain.

The first bill, SB8420, amends New York's general business law to require advertisers to "conspicuously disclose" when a "synthetic performer" appears in an advertisement. A "synthetic performer" is defined as a digital asset created or modified using generative AI (or a software algorithm) that is intended to create the impression that the synthetic performer is engaged in the audiovisual and/or visual performance of a human performer who nonetheless is not recognizable as any identifiable natural (or human) performer. Set to take effect in June 2026, the law applies to entities producing or creating advertisements featuring synthetic performers across all mediums. Violators who produce or create an advertisement without the required disclosure will face escalating civil penalties from $1,000 to $5,000, although the statute does not provide a private cause of action.

Also notable, however, are several of the law's exceptions. For example, the law does not apply to audio advertisements or where the uses of AI solely involve the language translation of a human performer (e.g., dubbing). The statute also does not apply to advertisements and promotional materials for expressive works like motion pictures, television programs, and documentaries—so long as "the use of a synthetic performer in the advertisement or promotional material is consistent with its use in the expressive work." But what qualifies as a "consistent" use is neither specified nor clear. For example, what happens if a film incorporates a synthetic performer that would give the film's audience the impression the performer is AI-generated, but the synthetic nature of the performer is not clear from the excerpts of the performance included in the film's trailer? Or, what if a television show wants to use a promotional campaign featuring an AI-generated character that appears in their show, but in content that is not part of the show itself? The statute's ambiguities may take years to address through legal challenges and statutory interpretation. And for those advertisements that do not fall under any exceptions, the law does not provide how the "conspicuous" disclosure requirement would be satisfied. In the absence of additional guidance from lawmakers, courts and regulators may have to look elsewhere—such as the disclosure standards governing paid influencer content—to assess whether a specific synthetic performer disclosure is sufficient.

The second bill signed into law, SB8391, modifies New York's existing post-mortem right of publicity law (Civil Rights Law § 50 et seq.) that requires consent from heirs and executors if a person or company wants to use the name, image, voice, or likeness of a deceased individual for commercial purposes. The statute broadens existing prohibitions governing the use of digital replicas of deceased performers in three ways.

First, the law changes the definition of a digital replica. Before, New York law limited a digital replica to a newly created, original, computer-generated electronic performance that a reasonable observer would think is a real performance. In the new bill, the Legislature deleted the reasonable observer standard, opting to define digital replicas as "newly created, computer-generated, highly realistic electronic representations" that are "readily identifiable" as individuals who did not appear in the work at issue.

Second, while New York's prior right of publicity law prohibited the use of a deceased performer's digital replica in certain scripted audiovisual works as a fictional character, there was a significant carveout as long as the work included a conspicuous disclaimer in the credits stating that the digital replica was not authorized by the person depicted. New York's amended law now deletes the disclaimer carveout and further expands liability by deleting prior language providing that a use of a digital replica was only actionable where it was "likely to deceive the public into thinking it was authorized." Instead, New York law now offers a narrower set of exceptions for audiovisual works, sound recordings, or live performances of musical works. These exceptions are for works: (1) of parody, satire, commentary or criticism; (2) of political or newsworthy value, or similar works such as documentaries, docudramas, or historical or biographical works (including some degree of fictionalization), (3) with a representation of the deceased performer as themselves including some degree of fictionalization, except in live performances of musical works; (4) de minimis or incidental uses, and (5) in advertisements or commercial announcements for any of the foregoing. These exceptions are similar (but not identical) to California's post-mortem right of publicity law that the Legislature amended in 2024 to address the use of digital replicas, although unlike California law that extends protection for 70 years after death, New York's publicity right lasts for 40 years. The net effect of New York's law is that while a producer may create a documentary or docudrama using a digital replica to depict a deceased celebrity as the celebrity without obtaining consent, a producer no longer may create a digital replica to depict a deceased celebrity playing a fictional role—i.e., a role that the celebrity would have been compensated for performing prior to the celebrity's death—without obtaining consent.

Finally, New York's digital replica amendment restricted the law's safe harbor for distributors who display, offer for sale or license, or sell a work that contains an unlawful digital replica. Lawmakers eliminated the safe harbor for distributors who are put on notice that the replica is not authorized and do not remove the work as soon as "technically and practically feasible."

For any questions about the above, please contact the authors. To explore more of The Generative Slate series, read our next installment: The Future of Authorship.