The stroke of a pen in Albany on December 11, 2025, marked not just the end of a legislative session but the dawn of a complex new chapter in the regulation of artificial intelligence. With the enactment of two landmark laws, New York has positioned itself at the forefront of governing synthetic media. This decisive state-level action, particularly from a global media and advertising hub, intersects with a simultaneous federal initiative, heralding a new era of intricate and potentially fragmented AI oversight. This analysis will dissect New York’s dual approach, which targets transparency in advertising and fortifies the right of publicity for deceased individuals, exploring the significant legal ambiguities this pioneering framework creates for the creative industries.
The Emerging Trend of AI-Generated Content
The Proliferation of Synthetic Performers and Digital Replicas
The rapid maturation and adoption of generative AI have fundamentally altered the landscapes of media and advertising. This technological surge has led to the widespread creation of “synthetic performers,” entirely fictional, human-like figures generated by algorithms, and “digital replicas,” hyper-realistic likenesses of real individuals. These tools are no longer experimental; they are being integrated into mainstream creative and commercial workflows, offering unprecedented efficiency and creative possibilities.
New York’s new laws are a direct response to the increasing use of these technologies in consumer-facing applications. As AI-generated content moves from the back-end production process to the front-facing advertisement or film, it triggers profound questions about authenticity, consumer trust, and personal rights. The state’s intervention reflects a growing regulatory trend aimed at establishing guardrails before these technologies become so ubiquitous that their effects are irreversible.
Real-World Applications Driving New Legislation
The legislative push was spurred by concrete applications of synthetic media that have become increasingly common. Advertisers now deploy non-identifiable, AI-generated human-like figures in campaigns to model products or populate commercials, a practice that blurs the line between reality and digital fabrication. These synthetic personas can be tailored to specific demographics and deployed at a fraction of the cost of a traditional photo or video shoot.
Simultaneously, the entertainment industry has embraced AI to create digital likenesses of deceased performers for new projects. This allows filmmakers to feature iconic actors in new movies, scripted works, or endorsements long after their passing. While celebrated by some as a way to preserve a legacy, the practice has raised significant ethical and legal concerns among estates and guilds, creating the impetus for stronger post-mortem protections.
Dissecting New York’s Regulatory Framework
SB8420 Mandating Transparency for AI in Advertising
The first pillar of New York’s new framework, SB8420, amends the state’s general business law to require a “conspicuous disclosure” when an advertisement features a “synthetic performer.” This law, which takes effect in June, is designed to ensure consumers are aware when they are viewing a digitally created human likeness that is not a real person. Enforcement will be carried out through civil penalties, but the statute notably precludes a private right of action, meaning individual consumers cannot sue advertisers directly for non-compliance.
However, the law’s apparent simplicity is undermined by critical ambiguities that create uncertainty for advertisers. The statute fails to define what qualifies as a “conspicuous” disclosure, leaving marketers to guess at the required size, placement, and duration of such a notice. Furthermore, a complex exemption for promotional materials tied to expressive works like films or video games hinges on the term “consistent,” another undefined concept. This raises challenging questions: if a trailer for a film uses a synthetic character in a way that is less obviously artificial than in the full movie, does it breach the consistency requirement?
SB8391 Strengthening Post-Mortem Right of Publicity
The second law, SB8391, delivers a comprehensive overhaul of New York’s right of publicity for deceased individuals, erecting new safeguards for their digital legacies. The legislation strengthens the existing statute in three primary ways. First, it redefines a “digital replica,” shifting from a subjective “reasonable observer” test to a more objective standard focused on a “highly realistic electronic representation” that is readily identifiable as the deceased individual. This change makes it easier to establish a violation without having to prove a viewer would be genuinely fooled.
Second, the amendment expands liability by closing a significant loophole and narrowing exceptions. It eliminates the previous disclaimer carve-out that allowed the use of a digital replica in fictional roles and removes the requirement that an unauthorized use be “likely to deceive” the public. This lowers the burden of proof for estates seeking to protect a deceased person’s likeness. Consequently, while using a replica in a documentary might still be permissible, using it to cast a deceased star in a new fictional movie is now prohibited without consent. Finally, the law restricts the “safe harbor” provision for distributors like streaming services, requiring them to remove infringing content upon notice, thereby shifting more compliance responsibility onto platforms.
Industry Implications and Expert Legal Analysis
For advertisers, producers, and content creators, New York’s new statutes have created a state of temporary legal limbo. The ambiguous language embedded within the laws, particularly undefined terms like “conspicuous” and “consistent,” means that clear compliance standards have yet to be established. This forces businesses to make difficult judgment calls about their creative and marketing strategies, operating under the shadow of potential legal challenges until courts or regulators provide definitive interpretations.
This legislative action significantly increases the compliance burden and legal risks across the creative industries. Advertisers must now develop and implement disclosure protocols without clear guidance, while film producers and their estates must navigate a much stricter set of rules governing the use of digital replicas. Distribution platforms, now facing heightened liability, will need to implement more robust notice-and-takedown procedures. When compared with existing laws, such as California’s more established right of publicity statute, New York’s framework contributes to a growing patchwork of state-level regulations, complicating national campaign and content distribution strategies.
The Future Trajectory of AI Governance
New York’s assertive legislative stance positions it as a potential bellwether in the national conversation on AI regulation. Its actions are likely to prompt other states to follow suit, potentially leading to a fragmented U.S. regulatory landscape with varying standards for disclosure and publicity rights. This could create a complex compliance maze for companies operating nationwide.
Moreover, the interplay between these new state laws and emerging federal initiatives will be critical in shaping the long-term national approach to AI governance. Friction between state and federal rules could lead to legal battles over preemption, while alignment could pave the way for a more harmonized national standard. In the interim, the industry faces a lengthy process of judicial interpretation and regulatory rulemaking to clarify the ambiguities within these laws. The central question remains whether these regulations will successfully balance innovation with consumer protection or inadvertently erect barriers that stifle the creative economy.
Conclusion: Navigating a New Era of Digital Authenticity
The passage of SB8420 and SB8391 represents a definitive move by New York to impose order on the rapidly evolving world of synthetic media. By focusing on consumer transparency in advertising and the protection of personal likeness after death, the state has established a clear set of values to guide the technology’s integration into society. These laws mark one of the most significant legislative actions to date in the governance of artificial intelligence in the United States. In response, advertisers, creators, and legal professionals must proactively engage with these new realities, closely monitoring judicial and regulatory developments to ensure compliance in a field where the legal ground is constantly shifting.
