The New York legislature recently passed a bill, A.8887-B(Rosenthal)/S.8420-A(Gianaris), that would mandate the conspicuous disclosure of "synthetic performers" in advertisements. A synthetic performer is defined as a digitally created asset made to resemble a human performer using AI or software algorithms.

If Gov. Kathy Hochul signs the bill into law, advertisers must disclose the presence of synthetic performers in ads. There are exceptions for advertisements that are solely audio or where the use of AI is to translate a human performer. The bill also provides for exemptions for advertisements related to expressive works. The application of those will require a detailed evaluation on a case-by-case basis. Violations could result in civil penalties of $1,000 for the first offense and $5,000 for subsequent violations. 

Brands advertising in a national media market should evaluate how they use generative AI to create their advertisements. But even for brands that are operating in local media markets outside of New York, where this law likely does not apply, this is a good warning that consumers and regulators may find the use of a synthetic performer to be “deceptive” in certain circumstances.